Transnational law – a new system of law?
PhD. student Alexandru BOSTAN1
Abstract
The paper presents the emergence and evolution of the concept of transnational
law, from the Philip Jessup’s 1956 novation to the latest approaches, mainly from the
western legal scholarship. In the legal writings from Romania or Republic of Moldova, the
phenomenon of transnational law remains unexplored or, at best, mentioned incidental as a
synonym of a modern “lex mercatoria”. Likewise, in Russian scholarship, research on
transnational law bears a strong private imprint and ubiquitous reluctance may be noted.
This article aims to discuss, from the perspective of legal pluralism, the loss of the state
monopoly in law making, the pluralization of sources of legitimacy for transnational actors,
and the reconsideration of the scope of the law, by de-territorializing it. Transnational law
is seen thus not just a private regime, but as a system of normative law that transcends
international or national law, acts in a distinct social space and addresses specific actors,
not only private, but also public or hybrid. In Romanian legal knowledge this approach is
missing.
Keywords: transnational law, transnational governance, legal pluralism,
transnational legal pluralism, lex mercatoria.
JEL Classification: K33
DOI: 10.24818/TBJ/2021/11/SP/05
1. Introduction
The legal field has changed substantially in recent decades, with the
“permeability of borders”2 generated by globalization, affecting the nature and role
of the state. More and more authors assert that “the state is no longer the sole
arbiter of what happens inside its borders” 3, once on the global stage new legal
actors with cross-boundary impact appear. This leads to the current debate on the
effects of globalization in law.
Although globalization is usually disaggregated into three categories:
economic, cultural and political 4, no matter what form modern globalization takes,
including in law, it is always a process that breaks old forms and introduces new
content. In regard to law, Stephan W. Schill noted that “globalization leads to the
1
Alexandru Bostan - PhD student, lecturer, Free International University of Moldova (ULIM),
Republic of Moldova, .
2
Bolintineanu, A., A. Năstase, and B. Aurescu. Drept internațional contemporan [Contemporary
international law], ed. 2. București: ALL Beck, 2000, p. 5.
3
Bevir, Mark. Governance: A very short introduction. Oxford: Oxford University Press, 2012, p. 96.
4
Sperling, Valerie. Altered States: The Globalization of Accountability. Cambridge: Cambridge
University Press, 2009, p. 5.
,Juridical Tribune Volume 11, Special Issue, October 2021 333
dissolution of the most fundamental classifications used to structure and define
fields of law or even entire legal orders, namely the dichotomies of national and
international law, on the one hand, and public and private law, on the other” 5 and
this is exactly the case of transnational law approach.
International law may have greater reach than border-bounded national
law, “but it is rather rigid and applies [mainly] to states, and not to transnational
actors”6 so that in a globalized modern society there remain legally unregulated
social relations.
In the Romanian doctrine it was also mentioned twenty years ago that
“globalization is explained first of all by an unprecedented increase of
interdependencies within the international society, due to the decreasing capacity of
states and governments to find the necessary solutions to the problems they face” 7,
but, unfortunately, in Romanian legal science the attitude towards transnational law
as a complex legal phenomenon of denationalization of law is almost missing.
Thus, with small exceptions8, most Romanian authors treat transnational law
exclusively from a private law perspective, as a synonym of lex mercatoria, some
even stating “the concept of transnational law is not convenient to use, if not even
unusable”9.
To meet the challenges of a globalized law, the concept of transnational
law has been revitalized in modern legal doctrine. Researchers in the field of
international law or international relations increasingly use the term “transnational
law”, but there is no unanimity of opinion on this concept's definition or content.
In this contribution, we will speak about the emergence and evolution of
this concept, about its essential elements, and we will highlight the most recent and
comprehensive approach to transnational law from a pluralistic perspective, as a
new legal system, above the classical public-private and international-national
dichotomies, dealing with the issues brought by globalization.
2. Contextual landmarks of the emergence
of the term “transnational law”
In a broad sense, the term “transnational” refers to “all those events,
activities and processes that transcend conventional political and jurisdictional
boundaries”10. The few definitions in the explanatory dictionaries of the Romanian
language clarify the transnational adjective just as “something that transcends
5
Schill, Stephan W. “Transnational legal approaches to administrative law: conceptualizing public
contracts in globalization.” Rivista trimestrale di diritto pubblico 1 (2014), p. 7.
6
Warning, Michael J. Transnational Public Governance. Palgrave Macmillan UK, 2009, p. 45.
7
Bolintineanu, A., A. Năstase, and B. Aurescu. Drept internaţional, p. 3.
8
See: Calotă, Adela Teodorescu. “Concepte de drept contemporan (I): globalizare, transnaţionalism
juridic, europenizare, pluralism juridic.” [“Concepts of contemporary law (I): globalization, legal
transnationalism, Europeanization, legal pluralism”] Revista de Stiinte Juridice 34, no. 1 (2019),
pp. 159-176.
9
Constantin, Valentin. Drept internațional [International law]. București: Universul Juridic, 2010,
p. 79.
10
Siliquini-Cinelli, Luca. “Legal Positivism in a Global and Transnational Age: Introduction.” In
Legal Positivism in a Global and Transnational Age. Springer, 2019, p. 16.
, 334 Juridical Volume 11, Special Issue, October
national borders”11, although, in our opinion, this wording is incomplete, because it
can be easily misunderstood to “supranational” or even “international”.
The term “transnational law” is inextricably linked to the name of Philip C.
Jessup, an American international law scholar, diplomat and later judge in the first
composition of the International Court of Justice, who first introduced the concept
of “transnational law” in 1956 during his lectures and in form of a published work
a year later. Although Jessup himself confess the term was not his original creation
and refers in the footnotes of his eminent volume to some scholars who have used
it occasionally before, and in a retrospective published after 17 years Jessup
regrets12 he had forgotten to mention others, he was the first to apply the term
“transnational” to law, “shifting attention from international law, as governing
relations between states, to transnational law, as governing transnational
activities”13.
Philip C. Jessup described transnational law “to include all law which
regulates actions or events that transcend national frontiers. Both public and
private international law are included, as are other rules which do not wholly fit
into such standard categories”14.
Due to this third element (“other rules”), a first revolutionary aspect of
Jessup's theory was to challenge the exclusivity and uniqueness of state
jurisdiction over a given territory, as opposed to concentrating exclusive
international law on the state, given that at the concept of “law” was, at the time
Jessup delivered his concept, closely linked to the concept of “state”, the only
accepted source of legal norms being national sovereignty, thus postulated by post-
Westphalian legal positivism.
Legal positivists and theorists of national legal systems treat the state law as
a fact , a given, conceiving law in terms of “systems of normative ordering that
15
have impermeable territorial and intellectual boundaries” 16. Some theorists, such as
Hans Kelsen, even went so far as to reduce the state to the legal system,
proclaiming “the identity of the state and law” 17. Nowadays, Giacinto della
Cananea warns us that positivism and the nationalist paradigm inevitably face
problems when confronting the contemporary realities of public law 18, which was
always much more “statist” than private law.
11
See: https://dexonline.ro/definitie/transnational, consulted on 1.07.2021.
12
Jessup, Philip C. “The Present State of Transnational Law.” In The Present State of International
Law and Other Essays. Springer, Dordrecht, 1973, p. 339.
13
Shaffer, Gregory, and Carlos Coye. “From International Law to Jessup's Transnational Law, from
Transnational Law to Transnational Legal Orders.” In The Many Lives of Transnational Law.
Cambridge: Cambridge University Press, 2020, p. 126.
14
Jessup, Philip C. Transnational Law. New Haven: Yale University Press, 1956, p. 2.
15
Glenn, H. Patrick. “Transnational Common Laws.” Fordham International Law Journal 29, no. 3
(2005), p. 458.
16
Kleinhans, Martha-Marie, and Roderick A. Macdonald. “What is a critical legal pluralism?”
Canadian Journal of Law and Society 12, no. 2 (1997), p. 29.
17
See for details: Somek, Alexander. “Stateless Law: Kelsen’s Conception and its Limits”. Oxford
Journal of Legal Studies 26, no. 4 (2006), p. 753.
18
della Cananea, Giacinto. “Transnational public law in Europe.” In Transnational Law — Rethinking
European Law and Legal Thinking. Cambridge University Press. 2014, p. 343.
PhD. student Alexandru BOSTAN1
Abstract
The paper presents the emergence and evolution of the concept of transnational
law, from the Philip Jessup’s 1956 novation to the latest approaches, mainly from the
western legal scholarship. In the legal writings from Romania or Republic of Moldova, the
phenomenon of transnational law remains unexplored or, at best, mentioned incidental as a
synonym of a modern “lex mercatoria”. Likewise, in Russian scholarship, research on
transnational law bears a strong private imprint and ubiquitous reluctance may be noted.
This article aims to discuss, from the perspective of legal pluralism, the loss of the state
monopoly in law making, the pluralization of sources of legitimacy for transnational actors,
and the reconsideration of the scope of the law, by de-territorializing it. Transnational law
is seen thus not just a private regime, but as a system of normative law that transcends
international or national law, acts in a distinct social space and addresses specific actors,
not only private, but also public or hybrid. In Romanian legal knowledge this approach is
missing.
Keywords: transnational law, transnational governance, legal pluralism,
transnational legal pluralism, lex mercatoria.
JEL Classification: K33
DOI: 10.24818/TBJ/2021/11/SP/05
1. Introduction
The legal field has changed substantially in recent decades, with the
“permeability of borders”2 generated by globalization, affecting the nature and role
of the state. More and more authors assert that “the state is no longer the sole
arbiter of what happens inside its borders” 3, once on the global stage new legal
actors with cross-boundary impact appear. This leads to the current debate on the
effects of globalization in law.
Although globalization is usually disaggregated into three categories:
economic, cultural and political 4, no matter what form modern globalization takes,
including in law, it is always a process that breaks old forms and introduces new
content. In regard to law, Stephan W. Schill noted that “globalization leads to the
1
Alexandru Bostan - PhD student, lecturer, Free International University of Moldova (ULIM),
Republic of Moldova, .
2
Bolintineanu, A., A. Năstase, and B. Aurescu. Drept internațional contemporan [Contemporary
international law], ed. 2. București: ALL Beck, 2000, p. 5.
3
Bevir, Mark. Governance: A very short introduction. Oxford: Oxford University Press, 2012, p. 96.
4
Sperling, Valerie. Altered States: The Globalization of Accountability. Cambridge: Cambridge
University Press, 2009, p. 5.
,Juridical Tribune Volume 11, Special Issue, October 2021 333
dissolution of the most fundamental classifications used to structure and define
fields of law or even entire legal orders, namely the dichotomies of national and
international law, on the one hand, and public and private law, on the other” 5 and
this is exactly the case of transnational law approach.
International law may have greater reach than border-bounded national
law, “but it is rather rigid and applies [mainly] to states, and not to transnational
actors”6 so that in a globalized modern society there remain legally unregulated
social relations.
In the Romanian doctrine it was also mentioned twenty years ago that
“globalization is explained first of all by an unprecedented increase of
interdependencies within the international society, due to the decreasing capacity of
states and governments to find the necessary solutions to the problems they face” 7,
but, unfortunately, in Romanian legal science the attitude towards transnational law
as a complex legal phenomenon of denationalization of law is almost missing.
Thus, with small exceptions8, most Romanian authors treat transnational law
exclusively from a private law perspective, as a synonym of lex mercatoria, some
even stating “the concept of transnational law is not convenient to use, if not even
unusable”9.
To meet the challenges of a globalized law, the concept of transnational
law has been revitalized in modern legal doctrine. Researchers in the field of
international law or international relations increasingly use the term “transnational
law”, but there is no unanimity of opinion on this concept's definition or content.
In this contribution, we will speak about the emergence and evolution of
this concept, about its essential elements, and we will highlight the most recent and
comprehensive approach to transnational law from a pluralistic perspective, as a
new legal system, above the classical public-private and international-national
dichotomies, dealing with the issues brought by globalization.
2. Contextual landmarks of the emergence
of the term “transnational law”
In a broad sense, the term “transnational” refers to “all those events,
activities and processes that transcend conventional political and jurisdictional
boundaries”10. The few definitions in the explanatory dictionaries of the Romanian
language clarify the transnational adjective just as “something that transcends
5
Schill, Stephan W. “Transnational legal approaches to administrative law: conceptualizing public
contracts in globalization.” Rivista trimestrale di diritto pubblico 1 (2014), p. 7.
6
Warning, Michael J. Transnational Public Governance. Palgrave Macmillan UK, 2009, p. 45.
7
Bolintineanu, A., A. Năstase, and B. Aurescu. Drept internaţional, p. 3.
8
See: Calotă, Adela Teodorescu. “Concepte de drept contemporan (I): globalizare, transnaţionalism
juridic, europenizare, pluralism juridic.” [“Concepts of contemporary law (I): globalization, legal
transnationalism, Europeanization, legal pluralism”] Revista de Stiinte Juridice 34, no. 1 (2019),
pp. 159-176.
9
Constantin, Valentin. Drept internațional [International law]. București: Universul Juridic, 2010,
p. 79.
10
Siliquini-Cinelli, Luca. “Legal Positivism in a Global and Transnational Age: Introduction.” In
Legal Positivism in a Global and Transnational Age. Springer, 2019, p. 16.
, 334 Juridical Volume 11, Special Issue, October
national borders”11, although, in our opinion, this wording is incomplete, because it
can be easily misunderstood to “supranational” or even “international”.
The term “transnational law” is inextricably linked to the name of Philip C.
Jessup, an American international law scholar, diplomat and later judge in the first
composition of the International Court of Justice, who first introduced the concept
of “transnational law” in 1956 during his lectures and in form of a published work
a year later. Although Jessup himself confess the term was not his original creation
and refers in the footnotes of his eminent volume to some scholars who have used
it occasionally before, and in a retrospective published after 17 years Jessup
regrets12 he had forgotten to mention others, he was the first to apply the term
“transnational” to law, “shifting attention from international law, as governing
relations between states, to transnational law, as governing transnational
activities”13.
Philip C. Jessup described transnational law “to include all law which
regulates actions or events that transcend national frontiers. Both public and
private international law are included, as are other rules which do not wholly fit
into such standard categories”14.
Due to this third element (“other rules”), a first revolutionary aspect of
Jessup's theory was to challenge the exclusivity and uniqueness of state
jurisdiction over a given territory, as opposed to concentrating exclusive
international law on the state, given that at the concept of “law” was, at the time
Jessup delivered his concept, closely linked to the concept of “state”, the only
accepted source of legal norms being national sovereignty, thus postulated by post-
Westphalian legal positivism.
Legal positivists and theorists of national legal systems treat the state law as
a fact , a given, conceiving law in terms of “systems of normative ordering that
15
have impermeable territorial and intellectual boundaries” 16. Some theorists, such as
Hans Kelsen, even went so far as to reduce the state to the legal system,
proclaiming “the identity of the state and law” 17. Nowadays, Giacinto della
Cananea warns us that positivism and the nationalist paradigm inevitably face
problems when confronting the contemporary realities of public law 18, which was
always much more “statist” than private law.
11
See: https://dexonline.ro/definitie/transnational, consulted on 1.07.2021.
12
Jessup, Philip C. “The Present State of Transnational Law.” In The Present State of International
Law and Other Essays. Springer, Dordrecht, 1973, p. 339.
13
Shaffer, Gregory, and Carlos Coye. “From International Law to Jessup's Transnational Law, from
Transnational Law to Transnational Legal Orders.” In The Many Lives of Transnational Law.
Cambridge: Cambridge University Press, 2020, p. 126.
14
Jessup, Philip C. Transnational Law. New Haven: Yale University Press, 1956, p. 2.
15
Glenn, H. Patrick. “Transnational Common Laws.” Fordham International Law Journal 29, no. 3
(2005), p. 458.
16
Kleinhans, Martha-Marie, and Roderick A. Macdonald. “What is a critical legal pluralism?”
Canadian Journal of Law and Society 12, no. 2 (1997), p. 29.
17
See for details: Somek, Alexander. “Stateless Law: Kelsen’s Conception and its Limits”. Oxford
Journal of Legal Studies 26, no. 4 (2006), p. 753.
18
della Cananea, Giacinto. “Transnational public law in Europe.” In Transnational Law — Rethinking
European Law and Legal Thinking. Cambridge University Press. 2014, p. 343.
