Researching
Transnational Legal Orders
By Terence C. Halliday and Gregory Shaffer
The concept of transnational legal orders (TLOs), and the framework erected around that
concept (Chapter 1), opens up many avenues for empirical research and theoretical
development regarding law and legal orders.
The empirical chapters in this volume concomitantly constitute a set of case
studies across highly variegated areas of law and bring with them a generativity of
research agendas, hypotheses, and questions, which must launch further rounds of
inquiry. The studies open up a rich vein of prospects and problems that implicate the full
spectrum of past, present, and prospective TLOs across substantive areas.
This concluding essay teases from the case studies a number of themes that clarify
and enrich our understanding of TLOs and their scope, settling, alignment,
institutionalization, and impacts. The themes covered are not exhaustive, but they
exemplify the dynamics of TLOs and their framing, rising and falling, generation and
propagation, contestation and resistance, structuring and nesting, mapping and moralities.
We proceed by extracting from the chapters categories, hypotheses, and questions about
these dynamics in order to open up the landscape of future research. For convenience, we
list the hypotheses in Annex 1.
A. Defining TLOs
New concepts make it possible to see the world in new ways. The concept of a
transnational legal order (TLO), as any concept, may be defined in terms of what it is and
in terms of what it is not. Chapter 1 endeavors to establish the former. Here we clear
away any underbrush of misperceptions about TLOs that may arise from our definitional
choice.
To recapitulate (see Chap. 1), we define a TLO as a collection of formalized legal
norms and associated organizations and actors that authoritatively order the
understanding and practice of law across national jurisdictions. The concept has three
elements. TLOs:
1) seek to produce order in an issue area that relevant actors construe
as a “problem”;
2) are legal insofar as they adopt legal form to address the problem,
their norms are produced or conveyed in connection with a
transnational body or network, and they directly or indirectly
engage national legal bodies; and
3) are transnational insofar as they transcend and permeate state
boundaries in one way or another.
The concept of TLOs focuses researchers and practitioners on how social
problems are conceived and ordered through law, and how that legal ordering transcends
and penetrates state boundaries. TLOs vary in their geographic and substantive legal
scope, producing multiplicities of legal orders variably spanning the globe. They rise and
fall through a combination of facilitating circumstances and precipitating conditions.
TLO theory and empirical research does not look solely at international or
transnational law — the traditional approaches of much of international law and
international relations scholarship. Rather it assesses how these legal norms settle and
become aligned at three levels — the transnational, national, and local — and how normmaking at these three levels interacts dynamically and recursively over time. The degree
of institutionalization of a TLO thereby involves an interplay of (a) norm settling within
and between the three levels and (b) alignment of a given TLO, often in complex
relations with other TLOs or systems of norms, as they seek to address underlying issues
or problems. The degree of institutionalization in turn shapes five impacts on behavior: of
the transnational on the national and local; of the local and national on the transnational;
of one state on another; of one TLO on other (and prospective) TLOs; and of
transnational legal orders on other kinds of orders, whether social, political, or religious,
among others.
Three potential misunderstandings must immediately be addressed.
Formal Properties
It is a defining characteristic of a TLO, as the concept is deployed in this volume
(Chap. 1), that it must exhibit formal properties. That is, the norms in a TLO must
involve international or transnational organizations or networks: directly or indirectly
engage multiple national and local legal institutions, and be expressed in a recognizable
legal form. Two objections can immediately be registered to this definitional stipulation.
First, there are many norms that might have influence on legal actors or legal
behaviors or outcomes subject to legal regulation which in themselves are not explicitly
legal. This is true. These norms undergird political and religious and social orders of
many kinds and are the conventional research domains of many anthropologists and
sociologists, among others. Nevertheless, to get purchase on what is already an
enormously complex phenomenon — the legal ordering of behaviors in diverse issueareas across vast spaces — we consciously demarcate our sphere of explanation to that
which is legal in our terms, a demarcation indeed which might already be considered
excessively expansive (see Bodansky, Chap. 8).
Second, there are systems of norms that legal anthropologists and others designate
as legal norms but they fall outside the three-fold stipulation above even though they
order the affairs of peoples the world over. We do not question the ubiquity of legal
orders of peoples and tribes and religious groups which have never been formalized and
which bear little or no relationship to any formal legal institution. Such legal orders
feature in studies of legal pluralism and are richly explicated in the long history of legal
anthropology. They have substantial potential consequences for TLOs and indeed might
even be generative or formative in shaping TLOs (see below), but for heuristic purposes
they are a bridge too far in the current stage of building TLO theory.
Not Simply Transnational Norms
International lawyers, among others, might readily conflate a set of transnational
norms, especially if settled, with an institutionalized TLO. From a behavioral vantage
point, this mirrors a classic fallacy of many international law studies — to suppose that
international legal norms, authoritatively formulated and codified in legal form, thereby
amount to a legal order, or in our case to a TLO. Social science research in all its
2
diversity contests this conflation just as we reject its assumptions. TLO theory differs
from regime theory in that transnational legal norms, thoroughly settled and uncontested
at the transnational level, do not thereby constitute a TLO until some evidence can be
adduced that the transnational norms are reflected in national legal norms, and that
national legal norms place their imprint on local legal norms, and there is some degree of
normative concordance among these several levels (Chap. 1).
Hence we also reject a fallacy of some political science and sociological research
that suggests that the adoption of transnational norms into national law would constitute a
TLO.1 Such adoptions might presage the emergence of a TLO if norms penetrate to the
local level; or, if norms from the local or national levels eventually become adopted in
international organizations (IOs) or networks. But we insist that settled norms at any level
— transnational, national, local — or a concordance of norms at any two levels (e.g.,
transnational and national, or national and local) do not constitute a TLO. A TLO, as an
ideal type, requires institutionalization derived from concordant settling and alignment at
all three levels of norms.
The Hegemonic, Counter-Hegemonic, and Non-Hegemonic
The diversity of TLOs encompassed in this volume does not fully represent the range of
possibilities. This book encompasses three broad clusters of law — business law,
regulatory law, and human rights law — but includes only a few subjects within those
areas. It has only one case study of a TLO that is at least in part privately generated, and
that TLO involves what Rajah calls a “meta-TLO” that has implications for all other legal
orders (see Rajah, Chap. 10 on the World Justice Project and its construction of a “rule of
law” TLO). It otherwise includes no TLO that is privately generated as through a nongovernmental organization, a private trade association, or one or more multinational
corporations that throw a shadow over commercial contracts and commercial behavior.
Even less does this book offer examples of TLOs that might be labeled “counterhegemonic” (De Sousa Santos 2005; De Sousa Santos, Twining and McCrudden 2002);
that is, TLOs that emerge from the Global South, that knit together countries in a region
of Africa or Latin America or developing countries in Asia, and may or may not have
coordinating IOs that settle legally ordered behavior in the relevant jurisdictions. There is
thus a danger that the concept of TLOs may be thought to be inherently hegemonic
(Rajah, Chap. 10) or coterminous with imperative orders erected from “above” and
imposed on states and local actors.
We emphatically insist that it is not the case that the concept of TLOs is
inherently hegemonic, nor that TLOs themselves are necessarily hegemonic and
imperatively organized. To the contrary, we propose both that the concept of TLO is a
tool that can be used for anti-hegemonic purposes and a TLO itself can be antihegemonic in its legal norms and impact.
Conceptually, to investigate a TLO requires unmasking and unveiling the power
that is infused into transnational norms and institutions, in national politics and legal
institutions, and in local norms and social practices. Insofar as TLOs involve
1
This assumption is a widely observed criticism of world polity theory and research on diffusion of laws
which show rates or distributions of adoption of global standards, models, or norms by national legislatures
or other institutions.
3
concatenations of power, which we assert is always the case, then whose power becomes
a fundamental topic of investigation. For instance, it is always necessary to ask whose
norms prevail in the several levels and spaces of a TLO. This question can be asked in
pursuit of critical inquiry (Darian-Smith 2013), as well as for sociological analysis.
In the case of critical inquiry, the TLO concept offers a new tool for unmasking
hidden and veiled exercise of power in legal orders. Repeatedly in this volume, authors
show the exercise of power in the crafting, propagation, contestation, institutionalization,
and impact of TLOs. No “hegemonic” actor in TLOs is missing from these pages.
Critique of hegemony in TLOs therefore must be part of any critical project to reveal the
contours of power, often disguised as technically neutral, in the rise and fall of TLOs.
The concept of TLOs itself calls attention to a configuration of power exercised through
law that is commonly under-estimated and over-looked in studies of globalization more
generally. The study of “globalized localisms,” as Santos has so aptly labeled hegemonic
projects emanating from powerful states or organizations, must be integral to TLO
inquiry (Santos 2000).
More importantly, the concept of TLOs has the theoretical power to capture legal
orders that emerge from “below,” legal orders that counter-pose global power with
regional power, advanced economies with blocs of developing economies, the power of
global capital with the claims of indigenous peoples, the power of warlords armed with
weapons supplied by powerful states and the power of persons armed with little more
than law. Hence a TLO could be erected by countries or communities seeking ecological
protections in the Amazon Basin; by peoples of First Nations who seek property rights
over herbal remedies; by peoples once treated as subhuman and who now demand redress
for seized property, or mass expulsions from their homeland, or mass death; or peoples
seeking to restore ancient linguistic and cultural and legal bonds even though they now
are partitioned among different nation-states; by economic legal orders that refuse to
charge interest on loans; by tiny island states and peoples who claim ancient customary
rights over fish and sea-life. This counter-hegemonic form of TLOs sets in motion a
different kind of contest: TLOs with their origins and provenances in the local now
confront national legal orders or rival TLOs firmly anchored in the institutions of the
global. In more precise ways it becomes possible to plot the struggles between TLOs
emerging from the Global South and those that originate in the Global North.
Not least, this research imperative to discover and plot the trajectories of counterhegemonic TLOs brings into closer conversation, on the one hand, anthropologists and
local historians, area specialists and experts on indigenous peoples, field workers and
researchers intimately familiar with the “local,” with, on the other hand, international
lawyers and IO specialists, quantitative sociologists and comparative political scientists,
ethnographers of the “global” and international political economists. A wide gulf exists in
counter-hegemonic literature between references to the counter-hegemonic as a concept
and empirically rich instantiations of counter-hegemonic institutions and TLOs (cf.
(Darian-Smith 2013).2 Counter-hegemonic TLOs are often raised as hypotheticals, but
without pointing to living examples. Efforts often fail. For example, Genschel and Rixen
2
But compare the studies in De Sousa Santos and Rodriquez-Garavito (2005) and De Sousa Santos (ed)
(2010), to the extent that local norms arise to cross national frontiers. That is, not all counter-hegemonic
action constitutes a counter-hegemonic TLO. De Sousa Santos 2002.
4
show how developing countries promoted alternatives to the OECD double-taxation
TLO, including through the Commonwealth, the Latin American Free Trade Association,
and the United Nations, but these efforts were dropped, blocked, or stealthily absorbed
into the OECD process.
Even more challenging is the task of identifying hegemonic and counterhegemonic TLOs within the Global North and within the Global South. The emergence in
the Global North of the Forestry Research Council (Cashore, Auld, Bernstein and
McDermott 2007) or the Landmine Treaty (Cameron, Lawson and Tomlin 1998) or the
anti-slavery (Martinez 2012) or green movements (Keck & Sikkink 1998) may all be
seen as insurgent counter-hegemonic movements in their origins — and movements
whose institutionalization emerged out of waves of conflict and contest with powers
commonly labeled as hegemonic. Likewise, legal hegemony commonly has a local face
— the economists in the Finance Ministries trained at MIT or the University of Chicago
economics departments, or the Justice Department officials with LLMs from European
and North American law schools, or the local citizen employed by an international nongovernmental organization (NGO) or international financial institution, or the local
employees of the MNC. Here the contest can appear less between two vertically
organized transnational TLOs and more between a dominant TLO and an insurgent TLO
within the Global North or South. Moreover, transnational norms, such as regarding
women’s rights, may be deployed by local activists to challenge existing local hegemonic
orders, such as in patriarchal or caste societies. That is, a transnational TLO can be
viewed as counter-hegemonic within a local context by destabilizing local power elites.
Finally, it must be noted that regional or area or specialized TLOs may arise de
novo, not because they are designed to be counter-hegemonic, but because they are
designed to solve a local problem in the absence of other solutions. If a TLO generated
by hegemons later emerges, and is constructed around competing legal norms, then a
previously existing regional TLO may find itself becoming counter-hegemonic. By the
same token, a TLO may emerge from local commercial practices and itself become
hegemonic. An example might be OHADA’s3 relatively successful project to harmonize
business law among seventeen African states (Macdonald, Chap. 3) which, depending on
how widespread commercial uptake is, might later come to be seen as an alternative, even
counter-hegemonic, TLO to that propagated by UNCITRAL. Similarly, the 1979 Andean
Treaty establishing the Andean Tribunal of Justice initially addressed intellectual
property protection among the Andean countries as a regional agreement, but after the
rise of U.S. bilateral initiatives to enhance protections beyond those required by
multilateral rules, it could be viewed as a counter-hegemonic TLO, providing a “bulwark
against powerful foreign interests that have pressured individual governments to go
beyond … WTO-compatible rules” (Helfer et al 2009, 34).
B.
Framing TLOs
Since TLOs involve bundles of meaning which produce legal order in issue-areas across
national boundaries, the discourses and frames of TLOs are integral to every aspect of
their dynamics. Five themes, hypotheses or research questions arise across the legal areas
canvassed in this volume.
3
L'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) or
5
First, a general hypothesis emerges (B1) that the discursive form of norms vary
and those variations matter (Merry, Chap. 11). At the transnational level many norms are
expressed in multilateral conventions where states bind themselves, at least in declared
intentions, to courses of action (Shaffer & Waibel, Chap. 5; Payne, Chap. 13; Lloyd &
Simmons, Chap. 12). While conventions may be written very precisely they can also be
written in aspirational or open-ended language.
While aspirational and open-ended language may have merits (see below), in the
past fifteen years it has led to forms of what Merry (…) calls translation. In human rights
TLOs, norms originally expressed in the UN Universal Declaration of Human Rights and
subsequent human rights conventions have been translated into indicators, which, as
Merry (Chap. 11) and Rajah (Chap. 10) show, can fundamentally change their meaning.
Merry opens up an evocative research agenda on the seductions of discourse where, for
instance, a move from broad norms to very precise indicators offers, according to Merry,
“the illusion of knowledge” and a pretense of knowing “a world that is unknowable”
(Merry, Chap. 11, p [18]). The process of translation of broad norms into precise
indicators raises the following research question for all TLOs — what forms of norms are
going to provide a competitive advantage to norm entrepreneurs in their efforts to
institutionalize or destabilize a TLO? That choice involves the question of audience. The
form of norms emanating from IOs may vary sharply if the key target audience in a state
is the Finance Ministry versus the Justice Ministry versus a welfare ministry. And they
may vary again depending on who are the local actors who generate or receive norms that
affect practice, such as political and business elites, civil society groups, or private legal
practitioners.
In finance and monetary TLOs, aspirational norms such as “financial stability”
have been translated into diagnostic instruments for global financial surveillance, most
notably exemplified by the Reports on the Observance of Standards and Codes (ROSCs)
undertaken by all IMF and World Bank members regarding twelve areas thought to be
critical to protecting international financial stability (See Shaffer & Waibel, Chap. 5;
Helleiner, Chap. 6; Halliday, Levi and Reuter 2014). Sometimes these instruments
involve indicators and sometimes they do not. But they nonetheless function as normative
devices that can ‘discipline’ countries into formal compliance, if not actual compliance in
practice. For concordance in TLOs (Block-Lieb/Halliday, Chap. 2), this distinction is
critical, since it exposes a common configuration across the world where there is formal
concordance in settling between transnational and national legal norms, but discordance
(Halliday, Levi and Reuter 2014) between the national norms (e.g., those promulgated by
a Central Bank or Financial Intelligence Unit) and local norms and practices, which settle
in incipient tension with national and transnational norms. This phenomenon opens up a
wide research agenda on (a) ways that diagnostic instruments become mechanisms for
TLO construction from above; and (b) the extent to which diagnostic instruments are
reinforced by translation into indicators.
Second, discourse and frames in TLOs are infused with theoretical and
ideological content that very often remains implicit or unexamined. Several types of
inquiry, such as scholars deploying critical discourse analysis (e.g., Rajah, Chap. 10; van
Dijk 2003; Blommaert and Bulcaen 2000; Fairclough 2006), are necessary to reveal this
content. In the process, TLO discursive analysis can bring to the surface particular
attributes of TLOs for critical examination, such as:
6
(1) Underlying assumptions, theoretical logics, conceptual ambiguities, hidden contours
of power, infuse TLOs. It is a plausible hypothesis (B2) that unsettling is more likely to
occur where implicit theories and logics underlying TLO norms are shown to be
erroneous or lead to demonstrable adverse effects.
(2) TLOs that are erected on normative standards from above are infused by ideologies,
such as those underlying the New International Financial Architecture (Helleiner, Chap.
6), the World Bank’s Doing Business indicators (Rajah, Chap. 10), or U.S.-driven
legal/financial ideologies of credit (Macdonald, Chap. 3). TLO discursive analysis
requires critical inquiry to unmask those ideologies. Such scrutiny is similarly necessary
for counter-hegemonic TLOs (Darian-Smith 2013).
(3) Since TLOs always involve configurations of power, where norms at any level are
likely to have distributive consequences, it is necessary always to inquire of TLO
discourses and counter-discourses (a) who benefits, and (b) who is harmed from their
effects of TLO institutionalization.
TLO analysis should always, therefore, be in a critical posture, inquiring of every frame
and testing every expression of meanings, by asking what are their distributive
consequences, and how those consequences will affect the rise or fall of TLOs.
Third, several of the chapters argue that form and content of a frame will affect
settling, alignment, institutionalization, and outcomes. The over-arching research
question becomes: what attributes of a frame contribute to the ascendancy of a frame?
Several hypotheses emerge from the TLO collaboration. Merry proposes (B3) that a
frame may be more readily adopted and adapted if it is rendered in “vague and visionary”
form than in “fixed and measurable” terms (Merry, Chap. 11, 19). This hypothesis
intersects with the wide-ranging debate among scholars on the relative merits of
principles versus rules, and hard versus soft law, in different areas of global regulation
(Braithwaite 2002). In parallel but with a different focus is another hypothesis (B4), that
the potency of indicators gives rise to greater formal compliance of states with
transnational legal norms, but simultaneously widens the gap between national versus
local norms and practices. We can derive from Merry and Payne the further hypothesis
(B5) that the adaptability of TLOs will be impaired by the fixed meanings of indicators or
the fixity of meanings of norms. In Merry’s terms, rigid meanings can “inhibit flexibility
and adaptation to context” (Merry, Chap. 11, 2), the classic mismatch which occurs when
TLOs from-above seek to impose square pegs in round holes (Andrews 2013). It might
also be hypothesized (B6) that the shift of a discourse from a narrower frame to a broader
frame increases the probability of national and local acceptance (Merry, Chap. 11, 8), not
least because the broader frame may attract greater resources (Lloyd/Simmons, Chap. 11,
17-19).
Here two kinds of affinity appear to affect the efficacy of frames. Lloyd and
Simmons (Chap. 12, 20) hypothesize (B7) that transnational consensus on a narrower
issue (e.g., human trafficking) is more likely when it can draw on a broader already
prominent and established frame (e.g., transnational crime). A related hypothesis
expresses “prominence” in terms of the actors that propagate or may be veto players over
adoption of discourses and frames at any level. It may be hypothesized (B8) that the
greater the power of actors proposing (or able to block) frames, the greater (or lesser) the
probability of their institutionalization and impact, although this hypothesis becomes
circular unless power is measured independently of its expression vis-à-vis erection of the
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particular TLO. For instance, Lloyd and Simmons (Chap. 12, 21) suggest that the human
trafficking TLO has a greater probability of acceptance if business signs on. Not least, we
can hypothesize (B9) that if a discursive frame from-above — such as a criminal law
frame — enhances (i) state sovereignty, or (ii) executive power within states, then it is
more likely to be acceptable to national authorities.
Fourth, the rise and fall of TLOs, and differentiation in the concordance of settled
TLO norms and their alignment at various levels, frequently arise out of contests among
discourses and frames (see below on Contesting TLOs). There are rich research
opportunities to be pursued. Helfer’s (Chap. 9, 3) account of struggles for access to
medicines among economic, moral and health frames, poses the question: when will
moral discourses prevail over economic discourses, or ideal discourses over material
discourses? It could be hypothesized, following Helfer, (B10) that a moral or health
discourse will prevail when the magnitude of harms its proponents can document (e.g.,
deaths from HIV/AIDS) far exceed the benefits or claims by carriers of economic
discourses. But power asymmetries (e.g., between multinational pharmaceutical
companies and poor blacks in South Africa) suggest (B11) that counter-discourses will
only be effective when propagated by actors capable of collective action (e.g., through
religious organizations, NGOs, or social movements) or the shaping of public opinion
(e.g., by media) and influence upon political will. Who are the carriers of discourses
becomes a critical question for explaining which discourses prevail in framing contests.
Another hypothesis addresses not which discourse prevails, but what are the
consequences of unresolved discursive conflicts and framing struggles. Consistent with
recursivity theory, Merry hypothesizes (B12) that if contradictory or conflicting
discourses remain active, each championed by vocal or powerful shapers of global public
opinion and policy, then settling and institutionalization are likely to be impeded (Chap.
11, 21). However, Helfer (Chap. 9) alternatively hypotheses (B13) that where the two
TLOs norms in tension with each other can both be applied, they can even further
constrain states (in his study, states have to recognize both patent rights and the social
right to obtain medicines at government expense).
Fifth, there are temporal dimensions to discourses and frames which require that
TLO theory and research should be always historically situated. Shaffer and Waibel
(Chap. 5: 21, 26) hypothesize (B14) that a crisis, shock, or geopolitical shift may compel
a re-appraisal or undermining of a prevailing ideological discourse and impel the search
for a replacing frame. Long episodes of shifting discourses on capital controls moved
from more controls under the Bretton Woods system (Keynesian theory in response to the
Great Depression concerned about the frame of monetary stability) to less controls (neoliberal theory in response to the decline and end of the Cold War concerned about
increased liquidity for economic growth), and then again back to a consideration of more
controls (in response to the financial crises of 1997 and 2008). Here changing historical
events or movements may work more to the favor of some frames over others. The
observation by Lloyd and Simmons that the human trafficking frame gained prominence
after the fall of the Berlin Wall, and in the context of weak and transitioning states,
suggests (B15) that a frame or discourse will shift if changing socio-political
circumstances have a greater fit with one frame versus another. If historical and
contextual circumstances influence frame shifts, it should also be expected (B16) that
frame shifts will always be temporally and contextually contingent such that sharply
8
changing circumstances over time or sharply divergent circumstances across the world
will lead to the failure of TLOs to settle or align, or to settle or align discordantly, or to
the unsettling and misalignment of existing TLOs.
C.
Rising TLOs
The case studies affirm emphatically Payne’s master proposition that the rise of TLOs are
“not linear, uncontroversial or inexorable” (Chap. 13, 4). While Büthe (Chap. 7, 5)
accepts that exogenous shocks may well precipitate actions and legal changes inside
countries, he offers the hypothesis (C1) that dramatic shocks of similar proportions in the
transnational domain will be slower to trigger TLOs than in the national space because
political institutions capable of legislating transnational norms are “largely lacking” in
the transnational space. Presumably the beginnings of a TLO from-above, therefore, will
vary significantly by the density of IOs or transnational institutions available to craft and
propagate norms. Moreover, Büthe (Chap. 7, 6ff) offers the notion of incipient TLOs: in
the regulation of food safety standards, four sets of IOs set a broad range of food
standards but they variously suffered from limited geographic or legal scope, they
excluded various classes of actors or had limited organizational capacities, and did not
significantly permeate national legal orders. His implication is that there was nothing
inevitable about the emergence of any one of these as the single global normative
authority: one or another might have become dominant; or they might have carved up the
issue-area amongst them; or one or more might have retreated or withdrawn or been
precluded from claims to normative oversight. Empirical and theoretical attention to
incipient TLOs that do not survive is a crucial part of the methodology for building TLO
theory.
The rise of TLOs may produce perverse, unintended effects. On the one hand,
Genschel and Rixen (Chap. 4) offer a “start small” hypothesis, proposing (C2) that a TLO
which focuses in the beginning on a narrower issue with limited legal, and perhaps,
geographic, scope, will have a greater probability of rapid institutionalization and impact.
On the other hand, Genschel and Rixen (Chap. 4) counterpose an “internal contradiction”
hypothesis (C3) that having great success with high alignment in a narrow issue-area may
create unexpected spillover effects that stimulate the rise of competing, countervailing, or
counterbalancing TLOs. This might be consistent with Payne’s discussion of
transnational recursivity theory and its attention to contradictions and indeterminacies as
drivers of repeated cycles of legal change. Whereas recursivity theory to date has
proposed that indeterminate and vague legal norms may drive lawmaking cycles until
there is a settling of meaning, Payne points to occasions where the very fixity or
determinacy of norms can make them rigid, lacking in adaptive capacity, and thus
vulnerable to attack, competition, or replacement.
This point returns us to the research question (see Framing TLOs): what forms of
legal norms yield a greater probability of settling (Merry, Chap. 11) or contribute to
unsettling (Payne, Chap. 13)? Merry joins the wider debate over the hardening of soft law
or softening of hard law (Shaffer and Pollack 2010) by hypothesizing (C4) that indicators
harden soft law (Chap. 5, 3-4) and this may increase the legitimacy of a regime, its
normative settling, and subsequent institutionalization. By translating soft law into
indicators, Merry says, propagators of transnational norms may broaden their knowledge
base, their epistemological foundations, and therefore appeal to wider audiences. An
9
appeal to science and quantification, and the commensuration (Espeland and Stevens
2008; Espeland and Vannebo 2007) of value into easily digested numbers, yields a
double impact: a powerful knowledge mandate is combined with an easily digestible
“fact” that makes comprehensible (even if illusory) otherwise bewildering complexity.
Evidence here also supports the hypothesis (C5) that proponents of a rising TLO
will enhance their competitive edge by migrating an incipient TLO’s epistemological
foundations from a frame with less legitimacy to one with more legitimacy. Migrating a
frame on human rights compliance to a development frame, for instance, markedly
expands its audience, says Merry (Chap. 11, 5-7). Here there is a related hypothesis (C6)
that proponents of incipient TLOs will be institutionalized with greater impact where
their epistemological premises are sustained, supported, and developed by already extant
powerful IOs, such as the World Health Organization or the IMF.
When do rising or incipient TLOs stall? Both Büthe and Macdonald point to the
rise of multiple TLOs, some regionally based, some originating in Clubs of Nations (e.g.,
OECD), some out of multilateral organizations. It is clear in the case of secured
transactions legal norms (Macdonald), that UNCITRAL aspired for its Legislative Guide
to be universal. Yet UNCITRAL faced competing incipient TLOs, not least in Europe.
This point suggests the hypothesis (C7) that proponents of a rising TLO with expansive
legal and geographic aspirations may confront other rising TLOs that are better
entrenched, with stronger institutional support, or with more powerful proponents, and
thereby limit their aspirations to a narrower legal or geographic scope. Many research
sites will be necessary before the contingencies of stalled or retracted TLOs can be built
into a contextually and temporally situated theory.
Here again, however, it is necessary to avoid the temptation of assuming that all
TLOs rise from “above,” from transnational bodies. The rise of the global TLOs on
secured transactions and corporate bankruptcy can be seen as globalized localisms. The
U.S. aimed to transpose its norms to the world. This development raises two research
questions: under what conditions can a TLO rising from a national or local context
become knit into a transnational TLO without the intervention of a global or transnational
IO, such as arguably for competition law (Shaffer et al 2014)? And what are the
possibilities and limits of national legal norms becoming inscribed in the legal norms of
transnational and global IOs?
D.
Propagating TLOs
The institutionalization of a TLO requires that its proponents propagate it across
geographic jurisdictions and possibly across legal domains and issue areas. At the very
least a TLO cannot be said to exist if its norms do not settle in more than one national
jurisdiction. The dynamics of propagation thus become an essential element in the
practice of TLO-building and the theory of TLOs. The studies in this volume underline
the varieties of propagation increasingly elaborated in disciplinary literatures. The
chapters point to promising lines of research on TLOs.
First, Helfer (Chap. 6) shows how effectively the U.S. has used new bilateral and
plurilateral treaty mechanisms to ensure intellectual property outcomes that it doubted
could be accomplished through existing IOs. This mode of building a TLO becomes
much more complex to analyze because the actual terms of each treaty may differ
somewhat and thus the core of the TLO and its variation across treaty partners will pose
10
greater research challenges, especially as regards the interaction and potential
instantiation of the treaty norms in local norms and practices. This form of propagation
needs careful attention because it can bypass international and transnational organizations
altogether. It is a complex research site where legal specialists and black letter academic
lawyers with sociolegal sensibilities can deploy their particular expertise.
Second, the studies on maritime and corporate bankruptcy law (BlockLieb/Halliday, Chap. 2) and rule-of-law indicators (Rajah, Chap. 10) confirm the
extensive findings of world polity scholarship that professions are integrally involved
either as a lawmaking brain-trust in consultations with an IO (e.g., CMI in maritime law),
and/or as a designer of global indicators (e.g., World Justice Project), and in both cases as
vital propagators of norms back to states and practicing professionals within them.
Third, the chapters illustrate the importance of civil society groups, not only
across borders, but within states, as both promoters and obstructers of TLOs. Civil
society groups promoted the access to medicines TLO (Helfer, Chap. 9) and the human
trafficking TLO (Lloyd & Simmons, Chap. 12), and they obstructed blanket amnesties
for crimes against humanity (Payne, Chap. 13) and the intellectual property TLO
regarding pharmaceutical patents. In these cases, the boundaries between public and
private are blurred, the insertion of the private into the public becomes evident, as does
the assertion of the public via the private, as in Rajah’s study of the World Justice Project
and a rule of law TLO.
The study of the dynamics of propagation thus beckons an intensely active
interface among the disciplines. The study of propagation dynamics raises a series of
research questions, two of which can be broadly formulated as follows.
The first question is: given that TLOs always have law at their center, is it
conceivable that a TLO can rise to a fully institutionalized form without a powerful legalpolitical role played by some part of the legal complex (Karpik and Halliday 2011)4? For
instance, Block-Lieb and Halliday propose (D1) that transnational legal norms that
emerge through consultation with the professionals who will implement them have a
greater probability of institutionalization. Conversely, it might be hypothesized (D2) that
a principal cause of the fall or contraction of a TLO is the withdrawal of support, or
internal fragmentation, of the legal complex around a set of legal norms.
The second question concerns civil society: when is transnational or national civil
society a necessary condition, or a significant factor, in the institutionalization of a TLO?
Is civil society salient only to a particular class of issues or areas of law (such as those
affecting human rights and the environment) and marginal to others (such as those
affecting technocratic business law)? Conversely, when can civil society check or push
back the expansion of a TLO? Helfer’s account of the struggle between intellectual
property and access to medicines TLOs is evocative because it shows how a convergence
of forces around life and death issues could check, albeit incompletely, even the most
powerful economic interests. But check those interests how far and under what
conditions?
4
The legal complex comprises all law-trained and law-practicing professionals who cluster around an
issue, including judges, private lawyers, corporate house counsel, prosecutors, government lawyers, and
legal academics. See also Halliday, Karpik& Feeley 2007.
11
While mechanisms of propagation are widely discussed in sociolegal and
sociological scholarship ((Braithwaite and Drahos 2000; Halliday and Osinsky 2006),
Helleiner (Chap. 6, 16-18) introduces a dynamic and contingent approach that
simultaneously offers a hypothesis regarding the expansion and contraction, or
quickening or slowing of the pace of expansion and contraction, of TLOs. He argues
(D3) that a combination of mechanisms — such as coercion, market discipline, and
persuasion through epistemic networks — can give rise to a TLO — in his case that of a
transnational financial legal order — but that this combination in historically contingent.
In Helleiner’s study, changes in the international political economy weakened the ability
of particular states, such as the U.S., together with international financial institutions
(IFIs), such as the IMF, to use coercion; the soft power of technical networks was pushed
aside by politicization of norm-making and the contradictory ideologies that accompanied
bargaining in domestic politics following the 2008 financial crisis; and shifts in market
forces came to work against compliance. Helleiner’s example firmly places on the
research agenda a historical and contextual account of the contingency of mechanisms,
including the interaction among those mechanisms and their situational and temporal
embeddedness and dependence.
Shaffer and Waibel (Chap. 5, 15) point further to an under-studied method of
propagation — the spread of surveillance mechanisms by international financial
institutions. The creation of standards in twelve areas of financial regulation and financial
stability has given the IMF and World Bank enormous reach into the interior of s, usually
via their finance ministries and central banks. They do so through IFM Article IV
reviews, Financial Stability Action Programs (of the IMF and World Bank), and Reports
on the Observance of Standards and Codes. Sometimes the surveillance technologies
underlying ROSCs themselves constitute standards. At other times, those standards are
imported from specialty IOs.5 Evidence supports the proposition (D4) that the probability
of propagation and adoption by states increases if an otherwise weak IO can attach its
norms to the financial surveillance mechanisms of an IO with more than persuasive
powers, such as the IMF, World Bank or WTO; this can energize the IO with only
persuasive or norm-setting powers. Büthe’s chapter on the linkage of standard setting
bodies to the WTO legal order with its enforcement mechanism provides further support.
Nevertheless, as will be seen below, this strategy of IOs confronts a counter-hypothesis
(D5) that there may be an internal contradiction or backlash to what appears at first blush
as a win-win situation for IOs that combine their respective norm-making and
enforcement powers. The very efficacy of imposing transnational norms on national
governments may thereby stimulate national and local resistance, so that concordance in
settling between national and transnational norms is accompanied by lack of concordance
between national and local norms and practice. There is ample evidence from the AntiMoney Laundering/Combating the Financing of Terrorism ROSC, for instance, that
national settling on global standards bears little if any resemblance to local norms and
compliance in practice (Halliday, Levi and Reuter 2014).
Finally, there are two countervailing hypotheses about the effects of the precision
or ambiguity of norms on propagation. On the one hand, it can be hypothesized (D6) that
propagation of a TLO across states may be facilitated by the ambiguity of norms, since
5
E.g., Basel II, IOSCO, UNCITRAL, FATF.
12
ambiguity provides room for national adaptations (Payne, Chap. 13). On the other hand,
advocates of bright-line rules in transnational texts argue (D7) that such rules have a
higher probability of adoption because states can simply drop those model laws or rules
into their statute books without much effort and cost. In addition, many countries prefer
to know exactly what they must do to comply with imperative transnational standards and
so prefer bright-lines rules (Cutler 2003). How are these competing hypotheses to be
reconciled? Again, an analysis of concordance helps accommodate the apparent
contrariety of the hypotheses: a model law can readily and quickly permit a concordance
of laws between national statutes and transnational laws, but quite probably at the price
of local discordance with national statutes and regulations; by contrast, an ambiguous
transnational law may require more reflection and adaptation at the national level but
with an increased probability that it will fit local circumstances. This last hypothesis is in
accord with another by Payne (Chap. 13, 6ff) (D8) that initial local resonance with a
transnational legal norm increases the probability of its successful adoption and thus a
higher rate of effective propagation at the local level (Campbell 2004).
E.
Contesting TLOs
The chapters in this book repeatedly demonstrate that TLOs, and their rise and fall,
commonly, but not always, involve conflicts and contests among TLOs.6 Therein lies a
wide-ranging research opportunity. Several chapters point to where those lines of
empirical inquiry might proceed.
At the outset it must be re-asserted that the unit of analysis — a TLO — is not
coterminous with a set of global or transnational norms. To be institutionalized, a TLO by
definition must have a degree of settling and alignment across transnational, national, and
local spaces. Contests and conflicts may therefore break out among sets of transnational
or national legal norms, or national and local legal norms, but these do not constitute a
contest among TLOs as such. Some conceptual and operational precision is necessary
here because otherwise debate and research too readily is reduced to conflicts among
international legal norms in the classic tradition of international law, where the power of
TLOs as a concept is reduced to struggles over international and transnational legal texts.
Is contestation inevitable? Genschel and Rixen (Chap.4, 21) hypothesize (E1) that
“TLOs have an inbuilt tendency towards issue expansion, overlap and enmeshment.”
TLOs start small with focused issue alignment but often cross those initial frontiers of
legal order and begin impinging on “already existing TLOs or with newly established
TLOs.”
Triggers
Such a tendency toward TLO expansion and overlap immediately raises the
question: what triggers contests among TLOs? Paradoxically enough, show Genschel and
Rixen (Chap. 4), the formation of a TLO, such as that on double-taxation from the 1920s
to 1960s, by its very success created a problem of tax competition, which stimulated the
drive for a new “harmful tax competition” TLO, which in turn came into friction with the
double-taxation TLO. Contests, they hypothesize in effect, (E2) can arise when one TLO
6
See “Resisting TLOs” (below) for the treatment of conflicts within TLOs.
13
inadvertently creates new problems that generate attempts at new solutions through
another TLO. A further hypothesis proposed by Büthe states (E3) that contestation can
increase if the institutionalization of a TLO raises actor awareness that there are higher
stakes in a legal order than they had previously recognized. Presumably, (E4) the higher
the stakes for actors with different interests, the greater the probability that some actors
will work to form a competing TLO. Those stakes certainly are not confined to material
interests. In the case of double-taxation and harmful tax competition, stakes reach to
issues of state sovereignty. In access to medicines versus intellectual property protections
of pharmaceutical patents, economic stakes were pitted against health outcomes. In the
development of rule of law indicators, economic standards came into conflict with justice
norms. In the handling of atrocity crimes, political settlement and expediency are pitted
against global human rights standards. It can by supposed (E5) that contests among
TLOs will intensify the more powerful the respective actors fighting for competing
interests in any TLO space.
Weapons of contestation
These weapons can be as diverse as bargaining, shaming, and political pressure at
any level of a TLO. For our purposes, the question is better focused on weapons that are
distinctive to transnational legal orders. Are the weapons of TLOs different in degree or
kind from other kinds of orders?
Several studies in this volume indicate that the legal weapons of contestation
require specialized investigation. For instance, Block-Lieb and Halliday (2014) suggest
(E6) that IOs that have the capacity to vary their legal technologies (e.g., standards,
model laws, legislative guides) — that is, the forms in which transnational norms are cast
— are able to fend off contests regarding a TLO more effectively than IOs dependent on
a single technology (e.g., conventions). This hypothesis is consistent with Helfer’s (Chap
9, 9) finding (E7) that some TLOs may gain an advantage if they can be aligned with
complementary dispute resolution institutions that are more effective than those of
competitors. World Trade Organization (WTO) dispute resolution institutions, he says,
offered significant benefits over those of the World Intellectual Property Organization
and thus the intellectual property TLO found an institutional locus that promised better
outcomes for key actors.
Since TLOs always have a legal component, it should follow (E8) that in TLOs
where influential sections of the legal complex are more effectively integrated into
national and local lawmaking and law implementation, such TLOs will have a
competitive advantage (see also D1 and D2 above). If national judges, for instance, will
be more sympathetic to an access to medicines TLO than an intellectual property TLO,
then proponents of the former have a competitive advantage. In TLOs driven “from
above,” it can be supposed (E9) that transnational lawmaking bodies that form coalitions
with the dominant legal specialists on an issue area strengthen their competitive
advantage.
Nonetheless, contestation does not always occur and contests can be resolved.
Helfer (Chap. 9, 7) describes how the access to medicines and intellectual property TLOs
expanded without friction for many years because the respective TLOs were focused on
different projects: one, access to medicines, was seeking to create global norms and
create international institutions; another, intellectual property, proceeded through
14
multilateral treaty negotiations that were “transposed to national and local levels.” The
state and non-state actors engaged with those TLOs did not overlap and did not see
threats to their respective “TLO’s sphere of influence.” Where contests do occur,
resolution is also possible, as Payne argues. Differences can be formally negotiated at
various levels. Alternatively, finds Payne, the contest between rival TLOs can be
resolved sequentially. In her study, the potential for different accountability and amnesty
TLOs regarding the response to atrocities in a country might be resolved by (E10) a de
facto sequencing of the application of norms over time. In the immediate years after a
civil conflict, finds Payne, amnesty norms often prevail in order to bring the conflict to an
end and to begin national reconstruction. When politics settle and a country is on a path
to recovery, then calls for accountability can amplify until those persons accused of
atrocities are held accountable to justice norms.
F.
Institutionalizing TLOs
The ultimate goal of proponents of a TLO is for its institutionalization across national
jurisdictions. Since TLOs can overlap and compete, we have proposed (Chap. 1) that a
TLO’s institutionalization is a function of two factors — the concordant settlement of
legal norms at the transnational, national, and local levels, and the alignment of a TLO, or
TLOs, with an issue. The combination of these two elements raises a series of
hypotheses.
Configurations of normative settlement and alignment
Different configurations of normative settling and TLO alignment with an issue
together affect the type and pace of institutionalization. Extrapolating from the analysis in
Chap 1 (Figure 3) and the case studies, it can be hypothesized (F1) that an incipient TLO
that has high alignment with underlying issues but low settling at the transnational level
should have lower probabilities of becoming institutionalized or take a different path to
institutionalization than an incipient TLO that is both highly aligned with an issue area
and in which the legal norms are substantially settled at the transnational level. The
double-taxation TLO (Genschel/Rixen, Chap. 4), with high degrees of normative
settlement and issue alignment, for example, is more institutionalized than that for torture
where there may be clear issue alignment but there are low levels of normative
settlement, especially at the level of local legal practice regarding what constitutes torture
in different contexts.
Further, (F2) where one or more incipient TLOs align with different subsets of an
issue, coordination can be more complex, potentially giving rise to tensions and, as a
result, institutionalization of the TLOs should be more uncertain. This pattern
characterized early efforts at forming a corporate insolvency TLO, involving rivalry
between the World Bank, IMF, and Asian Development Bank, among others (BlockLieb/Halliday, Chap. 2).
When, however, (F3) one or more prospective TLOs develop complementary
diagnoses of problems and develop complementary legal norms to promote order, the
prospects for institutionalization of the TLOs should rise. In the area of trade restrictions
on balance-of-payments grounds, the international trade and monetary orders with the
WTO and IMF at their respective helms, have divided up tasks in disciplining such
15
government measures, leading to a relatively high level of institutionalization
(Shaffer/Waibel, Chap. 5).
Patterns of alignment, and sequences of settling, vary and take several forms. We
need refined empirical investigations to show how different configurations of alignment
and normative settlement increase the probability of institutionalization occurring, and its
pace and sequencing.
The interaction of normative settlement and alignment
The two-dimensional analysis of institutionalization (Chap 1, pp. ___) stimulates
further hypotheses about relations of influence between settling of legal norms and
alignment of a TLO or TLOs with an issue. In theory, it should follow that variations in
alignment — the fit of TLOs to underlying issue areas — might influence the pace or
degree of settling, affecting overall institutionalization. Concurrently, variations in the
degree of settling might also influence alignment, again affecting overall
institutionalization.
It can be hypothesized (F4) that the tighter an alignment between a TLO and an
issue the faster it will produce normative settling. If the politics of alignment do not
involve competition or negotiation or uncertainty in relationships with other
institutionalized or incipient TLOs, then settling around a set of legal norms might follow
more readily. Genschel & Rixen (Chap. 4) demonstrate this dynamic in their analysis of
the double-taxation TLO. A counter argument nonetheless postulates (F5) that
competition among TLOs or the threat of competition by another incipient or existing
TLO might compel quicker settlement as a defensive strategy by an actor promulgating
legal norms, as was the case for carriage of goods by sea and UNCITRAL (Block
Lieb/Halliday, Chap. 2).
Other hypotheses can open up research on the influence of normative settling on
alignment. On the one hand, one can hypothesize (F6) that if there is a competition
between two TLOs-in-the-making (i.e., competitive alignment), and one remains weakly
unsettled and the other is more strongly settled, the proponents of the latter may have an
alignment advantage as they seek to claim jurisdiction over an issue area. On the other
hand, one can hypothesize (F7) that if a legal norm is unsettled at the national or local
level (say pharmaceutical patent protection), actors may more readily turn to create a new
TLO or harness an existing one (say a human right to health) as leverage to combat the
settling of the first legal norm (see Helfer, Chap. 9). And yet (E8), if two TLOs are
settled at the transnational level, then it may be more difficult to achieve a negotiated
alignment over which TLO covers what underlying issue-areas at the national and local
levels in different contexts. This situation can potentially lead to multiple TLOs placing
even greater constraints on national sovereign decisionmaking in a given issue area
(Helfer, Chap. 9).
In all these cases, empirical research is needed to reveal the circumstances under
which variations in settling will affect variations in alignment and vice versa.
G.
Nesting TLOs
16
TLOs are not all of a kind. The genus of TLOs, we propose, includes several species in
addition to the generic or proto-typical forms varying by substantive and geographic
scope introduced in Chapter 1.
Meta-TLOs
Rajah (Chap. 10) argues that there is at least one TLO that cuts across all the
others — a rule of law TLO. Insofar as rule of law has ancient and deep roots, and any
TLO invokes conceptions of law, justice, fairness, or equity, says Rajah, (G1) a TLO that
is “contextualized by ‘rule of law’” and incorporates “transnational ‘rule of law’
discourse operates as a meta-TLO for all other conceptions of legality in the sphere of the
transnational” (Rajah Chap. 10, 3).
This powerful hypothesis raises many questions, of which we flag two. First, is
this ubiquity of rule-of-law as a meta-TLO confined to those TLOs that arise out of a
western history of legal development and that have come to be infused into the legal
orders dominated by prominent international institutions, including the UN? Is it
conceivable that there are counter-hegemonic TLOs of the sorts noted above which do
not incorporate the core attributes of rule-of-law as Rajah characterizes them? Second, is
the rule of law TLO sui generis? In the current global concatenation of TLOs, does rule
of law stand alone or might other meta-TLOs be discovered or imagined?
Mega-TLOs
Helleiner (Chap. 6, 6-7) recounts how the aftermath of the Asian Financial Crisis
in 1997/1998 produced many sets of standards functionally differentiated so as to
regulate various components of financial systems. A Basel-regime, already well
established, regulated banks. Alongside it sprung up a body to regulate securities (the
International Organization of Securities Commissions), a body to regulate insurance (the
International Association of Insurance Supervisors), a body to regulate accounting (the
International Accounting Standards Board), among several others. In 1999 these bodies
were all brought together under the big umbrella of the Financial Stability Forum,
together with other IOs such as the IMF and OECD. In this sense we may designate the
Financial Stability Forum as a mega-TLO insofar as it brought “fragmented supervisory
structures” into an integrated structure that provided “more institutional coherence to the
bundle of sub-TFLOs (transnational financial legal orders)” (Helleiner Chap. 6, 8).
Unlike the meta-TLO, this forum acted as a coordinating and integrative structure
although, Helleiner observes, it has the properties of a “loose networked-form of
governance” (Id., 8). This example suggests the hypothesis (G2) that a sharp shock to
prevailing forms of transnational legal governance over fundamental global institutions
can precipitate interventions by powerful global governance actors to coordinate and
integrate regulatory TLOs into an umbrella mega-TLO. Construction of the “umbrella”
becomes the imperative and handiwork of the world’s more powerful global actors — in
this case, the G7, the IMF and World Bank, the U.S. and its close allies in the design and
execution of an international financial governance architecture.
Micro-TLOs
The obverse of the mega-TLO, as Helleiner (Chap. 6) demonstrates, are what he
calls “sub-TFLOs.” In the case of global financial regulation, Helleiner tells a story of the
17
progressive filling of spaces in financial systems by one or another small and limited
TLO, with no particular coordination among them. Little by little, first one, then another,
TLO fills an unregulated space with a regulatory or governance TLO.
Even more dramatic are the many “micro-TLOs,” as Bodansky (Chap. 8) calls
them, which have sprung up to confront the vast challenge of climate change. While
climate change as a whole is an issue-area where a “huge array of institutions” and an
enormous range of cross-cutting interests seem to make any comprehensive policy
consensus an impossible dream, Bodansky shows that there has been some normative
settling on micro-TLOs for greenhouse gas inventories, maritime transport emissions, and
(although they remain highly fragmented) carbon emissions trading systems (Chap. 8). If
the “fundamental architecture of the [climate] regime remains unsettled” after some
twenty years of UN negotiations, micro-TLOs have sprung up in one or another part of
the issue “space.”
The fact that decades of negotiations have not either filled the space with settled
micro-TLOs or led to a global settlement that integrates micro-TLOs into a mega-TLO
suggests the hypothesis (G3) that there is a curvilinear relationship between the properties
of underlying issue-areas (involving its scope and the number of affected actors and their
stakes) and the emergence of a mega-TLO that can coordinate or integrate micro-TLOs.
Thus, one hypothesis (G3a) is that an issue-area of confined legal and geographic scope,
with limited actors and interests, will not lead to a multiplicity of micro-TLOs which
require a mega-TLO to integrate them. However, (G3b) an issue area which has more
expansive legal and geographic scope, with many actors, diverse interests, and higher
stakes, may lead to a proliferation of micro-TLOs which ultimately come to be integrated
into a comprehensive mega-TLO. Finally, under a third scenario (G3c), an issue-area
which is vast in legal and geographical scope, involves extraordinarily variegated actors
with enormous economic stakes, may generate multiple micro-TLOs with little prospect
(at least in the short-term) of an integrative mega-TLO, such as in the case of climate
change (Bodansky Chap. 8).
H.
Mapping TLOs
An inescapable spatiality pervades studies in this volume. It is anticipated by the
diagrammatic representation of alignment in the opening essay (Halliday & Shaffer,
Chap. 1, Fig. 2; see also Helfer, Chap. 9, Fig.1). It recurs in the scalar framing of
verticality (transnational, national, local) and horizontality (neighboring TLOs, contesting
TLOs). It reveals itself constantly in analyses of geographic and legal scope. And it
unfolds in the temporal dynamisms of recursivity as TLOs rise and fall, are adopted,
adapted, and resisted. TLO theory, therefore, opens up multi-faceted potential
connections with legal geography in its manifold variants (Braverman, Blomley, Delaney
and Kedar 2013; Darian-Smith 2013; de Sousa Santos 2002).
Geographically
TLOs span jurisdictions that transcend national borders. Insofar as the world is
divided into political-legal units of states and sub-state entities, with global commons
such as the oceans in the interstices, then one view of TLOs will be their geographic
overlay on physical territory. The WTO Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS), therefore, might be visualized as a world map with
18
shading of every country that was a member of the WTO (Helfer, Chap. 9, 9). Likewise,
a world map with signatories to three international conventions on sea transport, would
yield a map of four different shadings for national territories — those signatories to
alternative conventions and those who had not signed any.
But therein lie three difficulties that accompany graphic mappings of treaty
signings or rankings with indicators (e.g., by Freedom House or the World Bank). First,
the monochromatic shading of all of a state’s territory as a signatory to a treaty or not,
belies the differentiation repeatedly asserted for TLOs, namely, that the accession of a
state to international or transnational norms may say very little at all about concordance
with national norms beyond the capital, whether in the other cities or regions or rural
areas within a state. There, local pluralistic legal orders may be incipient rivals to the
statist legal orders.
Second, cross-border TLOs that do not involve a treaty or network of which the
state is a member, or may be in opposition, incipiently or directly with the laws and
policies of the state, would require gradations of shading for incomplete
institutionalization of a TLO or, indeed, other shadings to signify competing legal orders.
In this sense, the visual image of a TLO’s incomplete penetration into all the corners of a
territory supposedly unified by a single state reinforces yet again the common fallacy in
some international law and political science and sociological research on diffusion of
law, namely, that adoption of international or transnational law by one of a state’s formal
legal institutions says very little about its significance for local practice.
Third, by conceiving of the world as a spatially distributed pastiche of state
territories, spatial images are confounded by global commons. Crisscrossing the world’s
oceans at any moment are flag ships governed by one or another of at least three treatybased TLOs, and in many cases ships governed by no treaty-based TLO at all and thus
only by underlying customary international law. Here a multiplicity of TLOs encounter
each other as ships forge through the Straits of Malacca, the Panama Canal, and the North
Sea.
Legally
Space might be envisaged less as a representation of politically-bounded land, and
more as a legal composite of fragments drawn from differing legal families,
jurisprudential lineages, or national models. Sometimes the fragments of an emerging set
of transnational legal norms can be readily identified with one legal family rather than
another, as Macdonald (Chap. 3) shows with the von Bar project for secured transactions
transnational norms within Europe. Yet even here the common law influence of England
has been melded in some measure with varieties of European civil law. In the case of law
that governs the transport of goods by sea, the “composition” of the law intertwines
concepts from diverse legal families, and an earlier lex mercatoria and customary
international law of the sea so thoroughly that a visual representation of the amalgam
would be kaleidoscopic. Nonetheless, the research enterprise of “mapping” legal
provenances of TLOs, and their master-norms, has significant theoretical force because it
compels observers of TLOs to step inside the formulations of norms at all levels and
investigate their lineages. By so doing, research unveils expressions of power frequently
invisible to those unable to penetrate the technical mysteries of so much of transnational
law. Examining this legal terrain would be a significant contribution to TLO theory by
19
technically sophisticated legal scholars with sociolegal sensibilities. Here research would
go far beyond naive categorizations of laws as “civil” versus “common” or “Islamic”
versus “Anglo-Saxon” law. It would show filaments of various state or non-state legal
traditions and practices as they encounter each other and become amalgamated or layered
upon each other (Harding 2001), and emergent tapestries arise and are institutionalized,
amidst much negotiation and creative fusion, into TLOs.
Relationally
Mapping can open up a theoretical terrain currently unexplored by international
organization and international law scholarship. While the social ecology of communities,
businesses, universities, and professions have been extensively investigated by
sociologists for almost a century, ecological theory, which views actors such as IOs in a
bounded relational space, has scarcely made an impact on thinking about relationships
among actors who position themselves vis-à-vis each other in order to place their
normative imprints on incipient or insurgent TLOs. Again, a theoretical conjuncture is
emerging where legal geography (Braverman et al. 2013)23-25) might encounter social
and political ecology theory of IOs (Abbott, Green and Keohane 2013; Block-Lieb and
Halliday 2011; Block-Lieb and Halliday 2013) where attention to boundary work and
relational analysis can explain why some norm entrepreneurs succeed in entering an
ecology of lawmaking and finding a space in which they can persist, while others do not,
or, indeed, are marginalized. Helfer’s study (Chap. 9) exemplifies these processes where
WIPO became at least temporarily displaced when the WTO moved into the center of the
lawmaking and dispute resolution space for an intellectual property TLO.
Temporally
As every chapter in this volume effectively asserts, TLOs are dynamic — rising
and falling, competing and cooperating, settling and unsettling, aligning and misaligning, persisting and fragmenting. While a synchronistic snapshot of a distribution of
TLOs across the world in a given issue-area might reveal something, repeatedly the
studies in this book emphasize that timing and sequencing matter. TLOs must be
examined diachronically, a fundamental premise of recursivity theory.
A succession of synchronistic snapshots, for example, every five years after the
adoption of transnational norms by national legislatures, is not without value if it raises
questions and recognizes its limits. Beyond that kind of mapping, a number of
contributors to this volume (Genschel and Rixen, Chap. 4; Block-Lieb and Halliday,
Chap. 2; Payne, Chap. 13) show how sequencing matters. The order in which national or
local or transnational legal norms come to resemble each other, or come to be aligned
with particular issues, has consequences for movement towards or away from
concordance across levels.
It can be hypothesized (H1) that transnational legal norms that emerge from
below, from states and localities, from industry and professions, for instance, might have
a higher probability of subsequent adoption in the originating states or localities than
legal norms generated from above and imposed on states, affecting the mapping of the
TLO. Genschel and Rixen (Chap. 4, 20) maintain (H2) that sequencing and timing also
matter insofar as initial framing for transnational legal norms and a TLO’s initial degree
20
of issue alignment can lead to internal contradictions and the “seeds of its own undoing,”
and potentially give rise to a parallel TLO.
Helleiner (Chap. 6, 9) presses these logics further with a call for the identification
of distinctive trajectories of TLOs, essentially along the lines of historical institutional
analysis. Attention to temporality would likewise require attention to the pace of TLO
formation, for instance, whether they are quickly or more deliberatively devised (cf.
standards for the combating of money-laundering and terrorism after 9/11), or whether
they reflect a cohort effect, i.e., the extent to which the historical and situational
emergence of norms (e.g., human rights norms after WWII; or commercial law norms
after the collapse of command economies) inscribes in TLO texts and institutions
properties that will not readily survive or adapt when contexts change (e.g. the demise or
contraction of IOs that were founded by the League of Nations once the League itself
dissolved (Block-Lieb and Halliday 2013)). The situational conditions of facilitating
circumstances and precipitating conditions that we identified in the opening chapter point
to the essential historical, political, economic, and ideological embeddedness of TLOs.
I. Resisting TLOs7
A theory of TLOs must incorporate a theory of resistance. That theory already can draw
upon extensive literatures on weapons of the weak (Scott 1985; Scott 1990) and national
“foiling” of transnational powers (Halliday and Carruthers 2007a; Halliday and
Carruthers 2009)(ch.9)). For TLOs, recursivity theory would predict that resistance could
come from any direction or between any of the levels of iterations among transnational,
national, and local levels. The analysis of resistance in TLO formation and deformation
will add particular value if it specializes in distinctively legal forms of resistance. Four
sets of questions must be engaged.
When does state and local resistance arise?
A general hypothesis (I1) can be derived from studies of quite different issueareas: The greater the deficiencies in the legitimacy of transnational lawmaking perceived
by state and local actors, the higher the probability of national/local resistance. Payne
offers a specification of this general hypothesis with her conclusion (I2) that “the more
settled the TLO at the international level the more likely it will be perceived by localnational forces as externally imposing alien solutions on weak countries, thus provoking
anti-TLO behavior, heightening discord, and contributing to the unsettling of the TLO.”
This intriguing and counter-intuitive hypothesis surely requires the qualification that such
transnational lawmaking and settling occurred in the absence of participation by weak
countries, or without their concurrence. If they were present and agreed with the ultimate
bargains in multi-lateral negotiations without a sense of being coerced, as they were in
the final negotiations of the Rotterdam Rules for global maritime trade, then resistance to
transnational norms is more likely to dissipate (Block-Lieb/Halliday, Chap. 2).8
We distinguish between “contesting” TLOs (covered above), where the conflict is between TLOs, and
“resisting” TLOs, where resistance occurs in some space or other in the settling and alignment of a given
TLO.
8
See also the literature on responsive regulation, which would be consistent with this argument (Ayres &
Braithwaite 1992).
7
21
Relatedly, it bears repeating (I3) that if transnational legal norms are perceived to
be instruments of imposition, coercion, surveillance, or control by stronger actors on
weaker states or local actors, then the probability of resistance increases. This situation is
a prevailing problem for the IMF and World Bank in their instruments of financial
surveillance or in their country interventions that derive from an ideology that many
countries reject (calling for low tariffs, freeing of capital markets, and curtailment of
industrial policy in the name of fiscal austerity). Since some scholars argue that so-called
dissenting “weak” countries invariably have a greater capacity to resist the strong (such
as IOs) over the longer term, than the strong have to impose norms on the weak, the
impact of resistance offers a major brake on imperative worldwide institutionalization of
TLOs.
National/local resistance can spring from many sources, including perceived
incursions on state sovereignty, harms to profits for large companies and other local
economic interests, and harms to vulnerable populations, such as the casualties of
epidemics when potential drugs are not made available, slum dwellers facing a removal
of price controls on staples, and the general population following financial contagion.
Understanding the concatenation of circumstances that converts these harms into
resistance with a legal inflection requires sustained effort. The degree and forms of
resistance should imprint themselves on the shape of settling and the patterns of
concordance in a TLO.
How do state and local actors resist?
State and local actors can use national, local, and international law to resist a
TLO’s norms. Payne (Chap. 13, 19) helpfully documents a variety of ways national
resistance through national law has been expressed towards the transnational norms for
accountability for war crimes. In national trials, for instance, she observes the frustration
of transnational human rights standards: (a) through selectivity, where rulers in post-civil
war conflicts use human rights trials selectively against once-allies who are now political
opponents, thus reinforcing a “culture of immunity;” (b) by foot-dragging (El Salvador),
where authorities move slowly to prosecute perpetrators or overturn convictions on
appeal; and (c) by “showcasing,” where a spectacular single trial distracts public attention
from a government’s failure to seek accountability more broadly. These quintessentially
legal techniques of resistance essentially deploy national law against the implementation
of global or transnational law.
By contrast, Helfer (Chap. 9, 2, 14) shows that international law itself, in
combination with national law, has enabled national and local resistance against global
intellectual property norms. He shows how developing countries and civil society groups
took advantage of the increase in “legalization and justiciability of the human right to
health in international and national law” to fight at multiple levels simultaneously. They
worked through the World Health Organization and UN human rights bodies.
Concomitantly, opponents of pharmaceutical patents in some countries, such as South
Africa and Brazil, mounted high-profile litigation and regulatory counterattacks against
pharmaceutical companies in national courts and administrations [14].
These different vectors of resistance confront us with the question of contingency:
under what circumstances will national/local legal institutions affirm or resist
transnational legal norms? It may be hypothesized (I4) that where there are weak
22
connections and continuity between members of the legal complex in transnational
settings and national/local settings, then national/local legal sponsorship will more likely
be lacking in capacity and will. Relatedly, (I5) the less autonomous national and local
legal institutions are from domestic political actors that resist transnational legal norms,
the more likely that legal institutions will resist them.
Resistance from above
In a recursive dynamic, resistance also can arise from above, such as from an IO
itself, as when transnational lawmakers refuse to import into global norms those of a
particular powerful country or interest group or profession. For example, the World
Health Organization (WHO) published a series of papers that critiqued the implications
of the WTO TRIPS agreement from a public health perspective, which was criticized by
the U.S. and proponents of pharmaceutical patents. The U.S. and the pharmaceutical
industry, however, could not block the WHO reports, and they were subsequently pressed
to agree to a waiver of TRIPS rules on compulsory licensing and acknowledge the need
for their flexible interpretation to accommodate the pursuit of public health goals (Helfer,
Chap. 9). Concomitantly, WIPO staff helped to develop a WIPO Development Agenda
resulting in a series of recommendations in 2007 that can be viewed as “a call for
restraint on the part of developed countries in their crusade for ever-stronger IP
protection” (Deere 2009, 128). In the intellectual property field, staff associated with the
Convention on Biodiversity could be seen as advancing the cause of indigenous rights in
herbal medicines in furthering the Convention’s mandate, to the concern of U.S.
pharmaceutical industry interests attempting to advance their interests through the WTO.
And in the environmental field, UNEP has worked with the NGO World Wildlife Fund to
address the adverse effects on fisheries from rich states’ fishing subsidies (Shaffer
2001).9
There are other examples of IO resistance to pressure from powerful states and
interest groups to globalize their national norms. For example, the Asian Development
Bank (ADB) walked away from UNCITRAL when it became clear that so much of
UNCITRAL’s Legislative Guide on Insolvency would be drawn from U.S. experience,
which the ADB did not think would work for Asia. Similarly, staff within the IMF
eventually pressed back against U.S. pressure to use the IMF to pressure China to revalue
the renminbi in light of U.S. trade competitiveness concerns (Shaffer/Waibel, Chap. 5).
From these examples, one can form the hypothesis (I6) that while IOs may advance the
interests of powerful states in order to enhance a TLO’s effectiveness, they will resist
pressure from these states where succumbing to it threatens the legitimacy of the IO as a
global actor.
What is the impact of resistance?
In transnational recursivity theory, resistance cannot be seen to be a single act at a
single moment. Resistance must be drawn into a diachronic analysis as reforms unfold
through entire episodes. National and local resistance frequently becomes a stimulus for
further rounds of transnational lawmaking as cycles of transnational and national/local
relations push each site of lawmaking to changes that may lead to or away from settling.
9
See discussion in Shaffer 2001 of 1997 WWF-UNEP conference on fisheries.
23
A key impact can be expressed as a hypothesis (I7) that the greater the national or
local resistance to transnational legal norms, whether from powerful states or blocs of
states or even the purportedly weak, the greater the probability that transnational
normmakers will revise the content of the norms, the composition of normmakers, or
both. The WTO Appellate Body, for example, has interpreted WTO norms over time in
ways that better accommodate concerns over national regulatory sovereignty (Shaffer
Forthcoming 2014), and the WTO Council of Ministers has adopted an understanding of
provisions in the TRIPS agreement on pharmaceutical patents that is more
accommodating of developing country concerns (Helfer, Chap. 9). Similarly, developing
country resistance successfully pressed for the G20 to replace the G7 as the key club of
states that will set standards for an “international financial architecture” (Helleiner, Chap.
6), and it spurred the OECD to become more inclusive in the development of a TLO to
address harmful tax competition by creating a more inclusive ‘Global Forum on
Taxation’ in 2001 that brings together OECD member states and offshore tax havens to
develop consensually new legal norms (Genschel/Rixen, Chap. 4). If transnational
lawmaking bodies are not able to cycle through “negotiations” between the transnational
and the local (Carruthers and Halliday 2006)), then (I8) local resistance may increase the
likelihood that a TLO will be still-born, discordant, or lead to the rise of a rival TLO.
National and local resistance can be a catalyst that compels recursive global and
transnational lawmaking because it increases the likelihood that powerful actors will be
compelled, in their own self-interest in order to ensure greater effectiveness, to negotiate
rather than to impose norms. Resistance may often originate from counter-hegemonic
impulses. We have observed that hegemonic and counter-hegemonic TLOs may confront
each other in contests for ascendancy. The same impulses that lead to counter-hegemonic
rival TLOs, however, may spur mobilization of the various powers of the weak to modify
an existing or incipient TLO.
J. Structuring TLOs
Studies in this volume make it clear that a theory of TLOs requires a socio-politics of
TLO structure. By structure we refer to the sociological concept that attends to varieties
of social organization as they unite and divide. The TLO studies point to a rich texture of
forms which give each TLO, at any moment in time, structures that will affect the
viability of a TLO, its institutionalization and impact. A general research question,
therefore, must ask: what types of TLO structures have affinities with, or even causal
influences upon, underlying problems and the probability of the rise or fall of a TLO? It
should be supposed, as a null hypothesis (J1) that certain structural forms will be better
adapted to legal orders in some issue areas than others.
Structural Forms of Organization in the Transnational
Observe the heterogeneity of transnational social formations found in TLOs for
human rights, regulatory law, and business law. There are (a) clubs of nations — as the
G7 or G20 demanding a more coherent global financial architecture (Helleiner;
Shaffer/Waibel) or the G-77 insisting that developing nations have a voice in global
maritime trade (Block-Lieb/Halliday); (b) ministerial networks — as finance ministers
caucus on tax competition, financial risk regulation, or currency valuation
(Genschel/Rixen; Helleiner; Shaffer/Waibel); (c) technocratic scientific networks — as
24
climate control specialists or authorities on food safety inform expert deliberations
(Bodansky; Büthe); (d) international professional associations — where lawyers and
accountants span the globe in peak associations that build from local groups through
national organizations to an International Bar Association or International Association of
Insolvency and Restructuring Specialists (INSOL) (Macdonald; Block-Lieb/Halliday);
(e) networks of NGOs — in the struggles for women’s rights and for accountability after
civil conflict (Payne) or in the crafting of indicators for national rule of law assessments
(Rajah); (f) multinational corporations and financial institutions — far-flung corporate
entities whose flows of goods, services, capital, and technology, from the production of
T-shirts to pharmaceuticals to financial derivatives, shape global labor practices, global
trade, and the distributions of public and private goods; (g) multilateral bodies — the
international financial institutions including not only the IMF and World Bank but the
regional development banks, such as the European Bank for Reconstruction and
Development and the Asian Development Bank; (h) multilateral quasi-parliamentary
bodies — such as the UN and its plethora of subsidiaries, such as the Human Rights
Council or the UN Commission on International Trade Law; and (i) international courts
and tribunals — ranging from human rights and crime, such as the Inter-American Court
of Human Rights and the International Criminal Court, to trade and investment, such as
the WTO Appellate Body and state-investor arbitral bodies.
Each of these forms of organization varies in the resources it requires, the
legitimacy it gains or loses, its mode of decision-making (e.g., parliamentary, judicial,
administrative, corporate), its degree of hierarchy (e.g., a putatively “flat” transnational
network versus a tightly coordinated imperative structure), its internal distributions of
authority, its power to propose and resist change, its modes of executing and
implementing decisions, and its adaptability. A structural theory of TLOs, therefore, will
identify attributes of any transnational form of organization within a TLO and then
systematically compare and contrast their relative merits for building, consolidating,
implementing, defending, and resisting TLO norms and practices.
Since TLOs invariably comprise a multiplicity of organizational forms at the
transnational level or space, a structural analysis at the transnational level will then look
to structural ties and alliances — coalitions, mutual deference (such as among
international courts), big tent mega-TLO structures such as the Global Stability Forum,
inclusionary bodies which draw disparate actors into deliberative chambers (such as
UNCITRAL), negotiated orders in divisions of labor, and the like. Here the study of
TLOs can draw heavily on global governance and regulation scholarship (Braithwaite
and Drahos 2000; Levi-Faur and Jordana Forthcoming; Abbott and Snidal 2010). For
instance, Büthe (Chap. 7) shows how linkage with the WTO dispute settlement system
created both an advantage for particular international standard-setting bodies over others,
and broadened and invigorated participation within these organizations in light of the
higher stakes. Shaffer and Waibel (Chap. 5) illustrate how the WTO and IMF
successfully linked forces in disciplining the use of trade restrictions on balance of
payments grounds, but have been unable to coordinate their respective rules to address
the trade implications of currency misalignment. Block-Lieb and Halliday (Chap. 2)
examine how the international financial institutions deferred to, and linked with,
UNCITRAL on account of its greater legitimacy for the diffusion of harmonized standard
setting in the area of corporate bankruptcy. Abbott and Snidal (2010) argue that
25
international organizations often operate best as “orchestrators” working in conjunction
with states and private organizations. Abbott, Green and Keohane (Abbott, Green and
Keohane 2013) argue further that private transnational organizations better adapt because
their forms are more flexible, while Abbott and Gartner (Abbott and Gartner 2012) assess
the reasons why linkages between public and private organizations vary in different
substantive areas such as transnational environmental and health regulation.
In all these cases the critical question remains the same: what sorts of structural
relations among transnational actors will influence the rise and fall, the scope and impact,
of TLOs? Since the concept of TLOs incorporates law as a defining characteristic, an
inter-disciplinary scholarship (in contrast to an exclusively sociological or political
science scholarship) should be especially attentive to the prominence and profiles of law
as an element in the internal and relational aspects of IOs, international networks, and the
like.
Perhaps the most promising, but most challenging, research problem on the
structuring of the transnational space of TLOs is the mapping of webs of bilateral and
plurilateral agreements implicating national law and local practice (cf. Lloyd/Simmons;
Shaffer/Waibel; Dur et al 2014). Inevitably this mapping must include quantitative work,
perhaps using network analysis, but coding substantive content of bilateral and
multilateral treaties for themes and their variations will be costly. The use of webs of
bilateral agreements is a means to secure great power dominance, especially where IOs
do not deliver it. The research difficulties involved cannot preclude efforts to map the
pastiche of bilateral agreements that knit together some TLOs.
Structural Forms of Organization in the National and Local
Comparative politics, economic and political sociology, and studies of regulation
elaborate complex typologies of state structure, forms of state political order, and various
sorts of domestic legal orders. The study of TLOs can draw upon but cannot be expected
to replace these efforts. The chapters in this book indicate that there are two directions of
research that demand careful attention by historians and/or qualitative social scientists.
On the one hand, research shows that certain elements of a state have various
kinds of affinities — problem framing, epistemological similarities, career
commonalities, circulation of officials — with particular IOs. The IMF, for instance,
finds its natural partners within states to be in finance ministries, and the WTO with trade
ministries. International tribunals have affinities with national courts and need to take
into account their reactions if their rulings are to be effective (Huneeus 2011).
UNCITRAL’s maritime law norms find their national counterpart in commerce
ministries, just as its bankruptcy lawmaking reaches more often to justice ministries.
Basel II and III banking norm-makers are pointing their regulations towards national
banking regulators and financial institutions, such as central banks. And, of course, in
recursivity theory, the opposite movement is also occurring, since national officials sit in
transnational lawmaking bodies and seek to either “upload” their national norms to the
global or at least protect their national norms and practices from global challenge. Not
enough work has been done on “negotiating globalization” or on “translation” in either
direction of transnational to national or national to transnational legal norms. Not only are
issues of state sovereignty at stake, but some research shows that the funnel from
26
transnational to national lawmaking (or vice versa) is very narrow and may involve only
a handful of strategically placed persons (Halliday and Carruthers 2006; Merry 2005).
On the other hand, a fully concordant TLO also relies upon structural ties between
the national and local. National regulatory standards become translated into handbooks of
regulations for bankers, internal compliance manuals for corporations, and practice
guides prepared by professional firms. The probability that legal norms adopted by a
national body will permeate the local will turn in part on the attributes of structures
linking the national to the local. Unfortunately, the bulk of research by international
lawyers and by sociologists studying the diffusion of global norms, has scarcely attended
to what happens beyond formal adoptions of the transnational legal norms in national
institutions. This empirical void does not easily yield to quantitative analysis or the
international lawyer’s methodical country by country examination of statutory
conformity with global norms. An extensive research agenda therefore opens up for
anthropologists (Darian-Smith 2004; Merry 2006), political scientists (Finnemore and
Sikkink 1998; Simmons, Dobbin & Garrett 2008), sociologists (Boyle 2001; Boyle and
Preves 2000; Campbell 2004), lawyers (Helfer, Shaffer 2013), and critical scholars
(Kennedy 2009; Pahuja 2013), among others, to show what kinds of structures (NGOs,
Financial Intelligence Units, professional associations, accounting firms) will act as
conduits back and forth between the local and national in the recursive outworking of
TLO politics.
K. Declining/Falling TLOs
TLOs rise. TLOs fall. The opening essay in this volume attends principally to the former.
This essay emphasizes the importance of explicating the latter. TLOs are mutable. They
decline. They are superseded. They implode. They fracture and dissolve. They do not do
so in a vacuum, but frequently as a result of contests among TLOs (see Section E above)
or internal splintering (see G) or resistance (see Section I above). Unsettling (BlockLieb/Halliday), loss of alignment and misalignment (Shaffer/Waibel), crumbling
institutionalization variously erode the foundations of a TLO. And they may thereby
create vacuums of legal order in responses to issue-areas, which in turn leaves fallow soil
in which new TLOs may sprout. The studies in this volume generate an array of
hypotheses on which a theory of TLO dissolution may build.
Legitimacy Deficits
An extensive IO literature documents the struggles for legitimacy, and the
multiple grounds of legitimacy, on which lawmaking transnational bodies seek to build
their authority (Barnett 1997; Clark 2005; Hurd 2007; Smismans 2004). Studies in this
volume support the hypothesis [K1] that TLOs are more likely to decline when key
warrants of legitimation for a TLO’s norms or normmaking organizations are
undermined. UNIDROIT, an international body for the unification of law, lost a struggle
to keep lawmaking on a secured transactions TLO because, in part, its less representative
body of lawmakers, and its Euro-centric reputation, could not match the claims to
universality of representativeness and expertise of UNCITRAL (Macdonald, Chap. 3).
The OECD’s tax competition initiatives were suspect and vulnerable to allegations of
neo-colonialism which is why the OECD club of rich nations decided to open up and
initiate the creation of a more inclusive organization, the Global Forum (Genschel/Rixen,
27
Chap. 4, 17). Research on legitimation deficits must catalog for every TLO, what are its
principal pillars of legitimacy, and how vulnerable are those pillars to erosion?
Internal Contradictions
Transnational recursivity theory proposes that the settling of TLOs will be
impeded by substantive and institutional contradictions within a TLO.10 Obversely,
several studies in this volume point to the corrosive effects of already institutionalized
TLOs. Merry (Chap. 11, 6) introduces the hypothesis [K2] that the process of translating
soft law into indicators may sow seeds of contradiction within a TLO. Paradoxically, the
expansive move of seeking to broaden the constituencies of a human rights TLO to
encapsulate development economics and management theory, can introduce internal
strains, competing constituencies, and thereby undermine a TLO’s normative coherence
(Merry, Chap. 11). Genschel and Rixen’s (Chap. 4, 21) “internal contradiction”
hypothesis points in a different direction. They propose [K3] that high initial alignment
and success in a narrow issue-area, may endogeneously create unintended consequences
and spillover effects that stimulate the rise of competing TLOs that diminish over time
the scope of the initially successful TLO (Id.: 20-21).
Changed Contexts
TLOs always are contextually situated in time, space, ideological discourses,
political and economic circumstances, geopolitics, and the like. All of the conditions that
facilitate or precipitate the rise of TLOs in the first instance, may, in principle, shift
radically to facilitate or precipitate their decline. Block-Lieb and Halliday (Chap. 2) show
how containerization in maritime trade, together with radical shifts in the identity of those
nations that are primarily carriers (owners of ships) and shippers (owners of goods),
rendered the Hague and Hague-Visby conventions increasingly irrelevant to 21st century
carriage of goods by sea. The decision of the Nixon administration to abandon pegged
exchange rates backed by gold collapsed the Bretton Woods system that had prevailed
from 1945-1971(Shaffer/Waibel, Chap. 5). The rise of China and the other BRICs,
together with the politicization of financial regulation following the 2008 financial crisis,
rendered much more challenging the creation of a new international financial architecture
(Helleiner, Chap. 6). The research challenge is to discern those determinative
circumstances on which TLOs rest and to imagine how their erosion might affect the
TLOs built upon them, including a TLO’s potential demise.
Inflexibility
We can observe two kinds of rigidities that can trigger a TLO’s decline. First,
there are rigidities in the forms that norms take. Both binding and legally precise
conventions and non-binding numerical indicators, while appealing to international
lawyers and quantitative social scientists respectively, trade off fixity of meanings for
constraints on adaptation. Here a growing scholarship on the choice of legal technologies
in transnational and global contexts may help to address the question of the perseverance,
or the decline and fall, of TLOs. Second, there are rigidities of organization. TLOs that
are embedded in organizational structures that are essentially inertial, or have rigidly
10
Although see Payne’s (Chap. 13) critique and refinement of this proposition.
28
constraining missions, or have memberships that cannot be altered, are likely to become
increasingly irrelevant over time as the enduring imprint of the conditions of their
founding prevents agile or responsive restructuring.
Several studies point to a general hypothesis [K4] that the more inflexibilities
built into a TLO (whether its texts or organizational pillars), the greater the probability
that disjunctions with embedding and enabling contexts will lead to decline. The research
challenge is to identify the rigidities inside TLOs and the conditions under which they
can be modified. Both Genschel and Rixen (Chap. 4, 13-15) and Payne (Chap. 13)
propose in different ways that rigidities can make TLOs brittle. Genschel and Rixen’s
argument (p.13) supports the hypothesis [K5] that that the greater the sunk costs involved
in constructing a TLO, the more resistant it will be to change. The great success of the
double tax relief TLO, based on an OECD model tax treaty, “in generating a large
installed base of bilateral tax treaties and domestic laws” thereby also demanded that
adaptations would require re-negotiation of treaties, reform of domestic laws, overturning of case law, and rewriting of textbooks. In her discussion of transnational
recursivity theory, Payne essentially proposes the hypothesis [K6] that elimination of
ambiguity and indeterminacy in transnational norms introduces a brittleness in the
substantive law itself which renders it less able to adapt cross-nationally or to the social
circumstances on which it is premised. Such rigidity might prevent what Genschel and
Rixen (Chap. 4, 14) felicitously call “TLO change by reinterpretation.” Even more
specific is Merry’s (Chap. 11, 2) hypothesis [K7] that the conversion of soft law
standards into the fixed meaning of indicators will inhibit flexibility and adaptation to
context.
Distributive Bias
TLOs always bear the imprint of their times of founding and the imprints of
power left by their originating actors. A master hypothesis that appears in several
chapters would propose [K8] that shifts in underlying balances of power that are salient
to a TLO at all levels (transnational, national, local) may break down their institutional
foundations. Massive changes in patterns of world trade shifted the balance of power
from carriers (owners of shipping lines, shipping nations) to shippers (producers of mass
products) so that the latter had far greater bargaining power in 2000 than they had in
1960. A convention based on one power configuration had simply been rendered
unsuitable for another power configuration. Balances of power shift among states. The
double tax relief TLO had “an inbuilt distributive bias” that benefitted rich countries in
the OECD (Genschel/Rixen, Chap. 4, 14). Many poor and tiny countries, however,
realized they could benefit greatly by creating tax havens. Weak countries might find
ways to overcome their collective action problems and challenge the fairness of existing
TLOs. Powerful states might weaken an existing TLO (such as that of the World
Intellectual Property Organization for intellectual property) by shifting their patronage to
different forums more responsive to their interests (such as the World Trade
Organization). Indeed, the fear of the U.S. withdrawing from institutions at the
transnational core of TLOs, or the U.S. refusing to join a TLO, may assign it eventually
to marginality or oblivion. Not least, distributive bias can trigger competition among
TLOs, leading to TLO misalignment that curtails any one TLO’s institutionalization
across levels.
29
Competition
It is consistent with the political ecology theory of IOs to hypothesize [K9] that
the greater the competition for resources among actors engaged in promoting TLOs in
general, the greater the probability that one or more TLOs will decline or fall. Shaffer and
Waibel (Chap. 5, 26) show that a proliferation of means for liberalizing capital controls
through bilateral, plurilateral, and multilateral agreements has led to the “fragmentation
of the international trade and investment legal order” in this area. TLOs dependent on
“top-down” hierarchical orders may be replaced by state-to-state relationships in all their
bewildering complexity. Or, a relatively coherent TLO within the British Commonwealth
which took a hard line on liquidating companies in bankruptcy has been progressively
eroded by a global TLO championed by the U.S. and developed by the UN Commission
on International Trade Law not only because of its powerful auspices but because it
reflects a secular long-term change in ideologies surrounding business failures.
Ineffectiveness
TLOs are constructed by norm entrepreneurs, statespersons, IOs, states and other
agents of legal change on the premise that they will not only produce bodies of norms but
those norms will have an impact on the perceived problems in an issue-area. Of course,
they may have many other impacts, some unanticipated, as several chapters show. Some
chapters provide evidence for the proposition (K10) that an inability to demonstrate the
effectiveness of a TLO will eventually undermine its claims and render it vulnerable to
dismantling (Merry, Chap. 11, 10; Helleiner, Chap. 6, 19-20). This proposition is by no
means self-evident. The well-institutionalized TLO on anti-money laundering and the
financing of terrorism has achieved penetration into the statute books of states, the
practices of banks, and even the records of NGOs (Machado 2013). Yet there is no
evidence that it reaches the objectives that purportedly led to its founding and
institutionalization (Halliday, Levi and Reuter 2014). It will be necessary, therefore, in
TLO research to show when effectiveness matters as a condition of TLO persistence or
when a demonstrable or asserted lack of effectiveness will lead to its demise.
L.
Moralities/Normativity of TLOs
As a normative matter, are TLOs to be viewed positively? Are they to be seen as
normatively desirable? Or are they normatively problematic? Payne (Chap. 13, 24), on
the one hand, makes the observation that “TLOs tend to be viewed positively.” In this
statement, she reflects views of law as designed to produce social order and public good,
something urgently needed in the transnational sphere. In contrast, Rajah (Chap. 10, 26),
from a critical perspective, implies that TLOs “normalize hierarchies of state and IO
power,” and thus should generally be viewed as hegemonic impositions.
Some of the debate over law’s morality goes to the very definition of what law is,
as reflected in natural law theory, including the variants of Lon Fuller and Ronald
Dworkin. A separate aspect of the debate is from an empirical and consequentialist
perspective regarding the impact of law’s substantive norms and institutions, as opposed
to its inherent nature. Sociologists writing in functionalist and systemic terms view law
instrumentally as producing social order and other social goods. The fact that legal norms
are settled or institutionalized suggests that the norms serve some function within society,
30
and in this way carry some normative value. Scholars working in the tradition of law and
economics likewise view law in consequentialist terms, but instead examine the costs and
benefits of public law in relation to private ordering. In contrast, a critical perspective
views law as a form of coercive power having distributional consequences favoring the
haves over the have nots. We discuss all three perspectives and their limits before
concluding with our normative stance.
First, there are those who develop moral theories of law itself. Lon Fuller (1969),
for example, writes of law in terms of its publicity, clarity, consistency, and stability, so
that a legal system is not legal by definition if it does not contain these procedural
characteristics. Ronald Dworkin (1986) goes further and writes of law in terms of moral
principles that are historically developed. Were one to adopt either of these approaches to
the very conception of law and law’s authority, one could potentially critique at least
some TLOs for failing to constitute law. But as others have responded more generally,
the risk with these conceptions is that they help to immunize the substance of law, and
thus of TLOs, from normative critique so long as law’s procedures and traditions and
principles meet the particular criteria advanced. Under these moral conceptions of law,
TLOs are legitimized by their very claim to being law. Our TLO theoretical enterprise,
however, builds no normative criteria into its conception of law, as stipulated in our
introductory essay and as reflected in the substantive chapters in the book.
Second, a more common conception among social scientists regarding law is a
functional one. Law and economics scholars assume a functionalist stance in contending
that law is either to facilitate market ordering (such as through recognition of property
rights and enforcement of contracts) or to address the limits of private ordering on
account of the externalities of private decision making and collective action problems in
producing public goods. More generally, functionalists view law as providing social
order, and thus some might view the TLO project as functionalist in adopting order as
one of its defining terms.
Certainly many TLOs are developed out of consequentialist concerns over
externalities, the production of public goods, and transnational social order and welfare.
A purpose of environmental law, for example, is to address externalities that market
prices do not capture. Similarly, individuals face collective action problems in producing
public goods, giving rise to calls for public law. While economists developed public
goods theory in the context of states, more recently they have turned to viewing public
goods in global and transnational terms in light of risks that cannot be resolved by state s
acting alone, such as climate change (Barrett 2010; Shaffer 2012). International financial
institutions likewise have begun to view matters traditionally seen as national law
concerns — such as tax collection and corporate insolvency law — in transnational and
global terms on account of their externalities and the risks of economic contagion for the
global public good of financial stability. Human rights and security law also address
concerns over the spillover effects of civil conflicts that can be addressed through
transnational legal ordering.
Certainly these functional perspectives drive the production of TLOs, but they are
limited in at least two ways. First, there are multiple ways to conceive of a problem to be
resolved, and thus there are multiple ways to imagine and conceive of a TLO to address
them. Second, choices over law’s terms have distributive consequences, and these
31
distributive consequences are often elided in functionalist analysis. Actors often
strategically use TLOs to create norms that favor their interests over others.
Third, because choices over the conceptions of a problem and the terms to address
it have distributive consequences, critical legal scholars rightly examine TLOs for their
potential hegemonic qualities. Certainly scholars must scrutinize the ideologies concealed
within TLO norms, and the potentially unjust distributive implications of them. Yet there
is no inherent reason that TLOs must be conceived only in hegemonic terms.
Our TLO theory-building collaborative enterprise can be used, in practice, both to
address social problems, however they may be conceived, as well as to critically
challenge particular TLO norms for what they include and for what they leave out. For
transnational and international law to be effective, we need TLO theory that reaches all
the way down to local practice. Yet TLOs, as law generally, are not normatively neutral,
and thus must be critically scrutinized. Most importantly, understanding the push to
develop TLOs is central for understanding the law in action today. Actors perceive of
problems that are transnational in scope and that call for legal ordering that transcends the
state. For purposes of practice, we need to develop TLO theory to understand how these
TLOs rise and fall, are resisted and adapted, in order to address social problems, however
we may conceive them, and to challenge their norms where we oppose them normatively.
M.
Recursivity of TLOs
The dynamics of TLOs, we insist, are recursive. Transnational recursivity theory
(Halliday 2009; Halliday and Carruthers 2007b; Shaffer 2011) demonstrates that the
dynamism of TLOs, from whatever direction they emerge, and whatever trajectories they
take, are integrally related to cycles of change, of settling and unsettling, alignment and
misalignment.11 The studies in this volume advance recursivity theory and point to a
number of research problems to be engaged when recursivity theory encounters the
vagaries of TLOs.
Recursivity theory proposes that episodes of TLO construction and destruction
have empirically discernible beginnings and endings, open to the scrutiny of historians
and empirical scholarship of all sorts. In the explanatory heuristic of this book,
beginnings are analyzed as interplays of facilitating circumstances and precipitating
conditions for the onset of each new TLO-building project, a parsimonious analytic
schema productively deployed in many chapters. Much less attention, however, is given
to endings — to the dismantling of a TLO or to the dissolution of an order
institutionalized as a TLO. Does an obverse theory of beginnings apply to the end of a
TLO’s life — are there facilitating circumstances that facilitate decline and precipitating
conditions that trigger dissolution or replacement? Some studies implicitly proceed as if
this were so (cf. the studies of Block-Lieb/Halliday on the maritime legal orders; and
Shaffer/Waibel on the Bretton Woods order).
Relatedly, several chapters open for closer scrutiny the process of unsettling
(Genschel/Rixen; Payne; Block-Lieb/Halliday; Helleiner). Particularly valuable are those
lines of inquiry that propose that unsettling may come not only from exogenous factors
11
Recursivity theory goes well beyond TLOs. It seeks to offer a framework for any account of legal
change, whether or not it explicitly entails the transnational or global. In this sense, the rise and fall of
TLOs is a subset of the larger category of legal change.
32
but endogenously — from rigidities or limitations inherent in certain legal forms, or
inherent contradictions or indeterminacies of meaning that a rigid organization cannot
resolve (see K above). Payne (Chap. 13, 23) advances these problematics evocatively
with her argument that in certain circumstances the mechanisms of recursivity theory will
be conducive to settling (e.g., by permitting flexibility, compatibility through sequencing,
resonance with local contexts, persistence awaiting new leadership) and in other
circumstances will produce unsettling (e.g., through rigidities, cynical adoptions,
impositions, and exclusion). The challenge is to identify the conditions under which, for
example, indeterminacy and ambiguity of norms increase the probability of norm settling
(e.g., in transnational bargains that produce agreement at the level of high-level
principles) and when they engender reactions that produce normative unsettling (e.g., that
lead to wide variations in local understandings, including because they result in domestic
statutes that reflect internal contradictions or otherwise unresolved issues).
This point that TLOs change and decline, in turn, raises the question of when it
can be said that one TLO has ended and another, perhaps a successor, has replaced it.
Compare the studies of TLOs on maritime law and rule of law. Block-Lieb and Halliday
(Chap. 2) show that several relatively discrete TLOs have arisen for the transport of
goods by sea, and that the Hague Rules and Hague-Visby Rules TLOs may well be on the
way to replacement by the Rotterdam Rules. Each is treated as a distinctive TLO even
though they have major overlaps in the conceptions of underlying problems, substantial
commonalities of purposes, and common provisions. Rajah, by contrast, juxtaposes three
sets of global rule-of-law norms — the UN Declaration of Human Rights, the World
Bank worldwide governance indicators, and the World Justice Project rule of law index
— and finds underlying continuities reflecting changes in a rule-of-law TLO. She
nonetheless distinguishes three sets of norms by their emphases — respectively
“humanist,” “market-driven,” and “ideologically ambivalent” (Rajah Chap. 10). Rather
than three TLOs, Rajah proposes that these three sets of transnational normative
formulations are three variations on a common theme, each adhering to an underlying
“meta-text” and each to be engaged inter-textually with the others. Later sets of rule-oflaw norms (e.g., from the World Bank) are “layered” on earlier norms (e.g., from the
United Nations). In fact, the metaphor of layering captures aspects of the non-linear as
well as the sequential cyclical qualities of recursivity in the rise and fall of TLOs. Rajah
(Chap. 10) well expresses recursivity theory as a discursive process: “when an
international organization generates a text intended for an international audience, and
when that text encapsulates transnational norms for ‘rule of law’, it is a layered moment
simultaneously invoking past, present, and future.”
These contrasting cases thereby pose for subsequent research and theory both the
necessity of understanding “boundary-making” between or within TLOs and providing
some analytic sharpness to aid a theoretical-empirical enterprise for which differentiation
between TLOs is imperative for theory-building and practice. Distinctions among metaTLOs, mega-TLOs, and mini-TLOs may go some distance to meet this challenge, but
they do not at all resolve it.
Cyclicality infuses TLO dynamics. Cycles of norm-making occur within and
among each of the transnational, national, and local spaces, as chapters in this volume
show. But to argue that TLO dynamics are not linear, does not mean they are random.
33
This book presses recursivity theory to specify and explain the properties of cyclicality in
at least two respects.
First, transnational recursivity theory needs to account for variations in sequence.
Block-Lieb and Halliday (Chap. 2) offer the hypothesis that TLO construction that starts
at the local or state levels, or at least involves relatively more equal input into
transnational lawmaking from affected national and local stakeholders, offers a higher
probability of settling in these states and localities than norm-making that starts “above”
and is imposed upon them. This hypothesis, however, must be qualified in terms of which
states or localities generate norms that their proponents seek to be adopted by
transnational bodies. Moreover, the qualification poses the more general research
question as to when it matters if a sequence of TLO-building comes either from “above”
(and, in that case, whose “above”) or “below” (and, in that case, whose below)? Much
theory on hegemony and counter-hegemony generally addresses this question, but more
research is needed to address questions of sequencing. The politics of concordance and
discordance among levels of a TLO suggests that varieties of sequencing likely produce
variations in outcomes. We need to develop a contingent theory of sequencing, where
sequencing can lead towards or away from concordance, in order to advance debates over
when globalization or transnationalization processes result in normative convergence or
divergence.
Second, recursivity theory needs to account for variations in the pace of settling.
While earlier empirical studies concluded that a slowing pace of cyclical reforms
indicated a settling of legal norms (i.e., fewer court cases were required to clarify
meanings of norms), Payne (Chap. 13, 6) argues that attention to pace alone “may tell us
very little about settling or unsettling processes.” Payne shows (M1) that a faster pace of
lawmaking might reflect resistance and hence an effort to nullify the impact of new legal
norms, or, to the contrary, (M2) it might reflect an urgency to produce conforming
behavior to legal norms that are settled. Moreover, Payne (Chap. 13, 5) shows that the
pace of change in a TLO may differ markedly in terms of where that change occurs: at
the international level, the accountability TLO experienced fast-paced, then slow-paced,
then fast-paced iterations of lawmaking, while little was happening at the national and
local levels. This call for a refined understanding of pace demonstrates that pace must be
scrutinized at all levels and that careful distinctions must be drawn regarding what a
particular pace reflects. A very rapid pace of ordinary cases could indicate low
settlement, but it could also indicate high settlement in an area of great interest to
litigants. And a slow, episodic pace of cases could indicate either high settlement of legal
meaning requiring little litigation, or low settlement on account of resistance, uneven
attempts at enforcement, or periodic challenges to a norm’s meaning.
These concerns about pace of the settling of legal norms once more raise
questions about the boundaries of TLOs. When might changes in legal norms within a
TLO indicate a normal re-adjustment in response to changing demands and
circumstances in the ordinary course of incremental adaptation, and when might such
change or revision be considered sufficiently significant that it signals a move from one
TLO to another? Such questions cannot be resolved in the abstract, but require further
empirical and historical study across substantive legal domains.
Conclusion
34
The rich empirical studies in this volume demonstrated that the concept of TLOs has
wide-ranging potential generativity for the theory and practice of law in global contexts.
We conclude with a series of statements that summarize the TLO enterprise.
First, a TLO can be constructed in response to any issue, domestic or
transnational or global, that is susceptible in principle or practice to legal ordering. It can
thus apply to any area of law that is susceptible to being applied within multiple national
jurisdictions. These TLOs can be arrayed in expansiveness from meta- and mega-TLOs
to mini-TLOs. They can define substantive domains and span geographic frontiers in any
number of mappings.
Second, TLOs rise and fall in temporal trajectories or recursive episodes that have
beginnings and endings. Some are born but never grow to maturity. Others die as they
fail to adapt to changing contexts or disintegrate from internal contradictions and
conflicts. Yet others attain a degree of institutionalization that may remain stable for long
periods of time — decades and beyond.
Third, TLOs exhibit great varieties of normative concordance and alignment with
issue-areas. The institutionalization of a legal norm does not mean identical
implementation in every state and locality affected, but rather reflects variations in
convergence of the understanding of the meaning of legal norms for actual practice.
Fourth, the concept of TLOs can emancipate scholars and practitioners alike from
the tenacious premise that a coherent and dominant set of transnational legal norms
amounts to anything more than just transnational norms. That is, to remedy empiricallyimplausible assumptions by international lawyers and social scientists that focus only on
international and global legal norms in their studies, the empirical project of TLO
research requires careful examination of national and local legal norms on a given issue
in order to ascertain whether there is normative concordance in settling and alignment at
all levels, and the conditions under which this concordance occurs. It then can address
whether the resulting institutionalization of the legal norms induces new patterns of
behavior. That is, TLO theory demands empirical evidence that global norms and local
legal norms bear a resemblance to each other and subsequently have an impact on
behavior through the TLO.
Fifth, the recursive dynamics integral to TLOs incorporate a logic of inquiry that
makes no a priori assumptions about whether TLOs are constituted in the first instance
by initiatives from below, such as from a non-hegemonic state or an NGO or even an
individual, or initiatives from above, whether a hegemonic nation or club of nations, IOs,
multinational corporations, or international NGOs. Put another way, TLO research should
be agnostic about where the drivers of TLO formation or deformation are to be found,
whether above the level of states, across states, or below the state. While it may be the
case that very often, even predominantly, TLOs in the 21st century are driven by
transnational actors, they cannot be assumed to be imperatively organized hierarchies of
legal norms which compel all the world’s nations and localities to conform to an identical
normative template.
Sixth, TLOs can be understood, in part, as constellations of power expressed in
terms of configurations of legal norms. As distributions of power, they may be
hegemonic or counter-hegemonic or non-hegemonic. They can originate from “below” or
“above” or “across.”
35
Seventh, the concept of TLO may be used ideologically to legitimate an order
propounded by transnational authorities or, in radical contrariety, as a critical tool to
unveil asymmetries of power in transnational legal ordering. Alternatively, the concept
may be used as a form of ideological validation for emergent TLOs from below, by
styling them as something more than ad hoc concatenations of legal norms, or indeed as a
banner under which TLO proponents seek to draw in states or industries or peoples.
Finally, researching TLOs ultimately must engage two countervailing master
propositions about law and globalization. On the one hand, evidence in this volume
appears to support the proposition that the density of social, economic, and political
orders being penetrated by legal orders, constituted as TLOs, is a secular global (albeit
uneven) trend in social organization across the issue-areas of business, regulatory, and
human rights law. On the other hand, the concept of TLOs and other evidence adduced in
this volume indicates that globalization in the form of single universal TLOs may face
resistance and disintegration into multiple complementary or competing TLOs, or failure
to create TLOs. The concept of TLOs enables more precise and refined approaches to the
empirical examination of these contesting master propositions and thereby a tool for
academic and practice communities to discover and appraise the significance of the legal
orders being forged transnationally at this time.
36
Annex I
A Compendium of Hypotheses and Propositions
On Transnational Legal Orders
The following hypotheses and propositions are excerpted from the respective sections in
this chapter. Since most are drawn from the case studies in the volume, they reflect all the
variety in those cases. They vary in their properties (e.g., their degree of specificity and
precision, complexity and prospective operationalization) as they in turn reflect differing
attributes of empirical cases. They are not necessarily consistent with each other.
B. Framing TLOs
B1:
Discursive forms of norms vary and those forms matter
B2:
Unsettling is more likely to occur where implicit theories and logics
underlying TLO norms are shown to be erroneous or lead to demonstrable adverse
effects.
B3:
A frame may be more readily adopted and adapted if it is rendered in
vague and visionary form than in fixed and measurable terms
B4:
The potency of indicators gives rise to greater formal compliance of states
with transnational legal norms, but simultaneously widens the gap between
national versus local norms and practices.
B5:
The adaptability of TLOs will be impaired by the fixed meanings of
indicators or the fixity of meanings of norms.
B6:
The shift of a discourse from a narrower frame to a broader frame
increases the probability of national and local acceptance.
B7:
Transnational consensus on a narrower frame is more likely when it can
draw on a broader already prominent and established frame
B8:
The greater the power of actors proposing (or able to block) frames, the
greater (or lesser) the probability of their institutionalization and impact.
B9:
If a discursive frame from-above enhances (i) state sovereignty, or (ii)
executive power within states, then it is more likely to be acceptable to national
authorities.
B10: A moral or health discourse will prevail when the magnitude of harms its
proponents can document far exceed the benefits or claims by carriers of
economic discourses.
B11: Counter-discourses will only be effective when propagated by actors
capable of collective action (e.g., through religious organizations, NGOs, or social
movements) or the shaping of public opinion (e.g., by media) and influence upon
political will.
B12: If contradictory or conflicting discourses remain active, each championed
by vocal or powerful shapers of global public opinion and policy, then settling
and institutionalization are likely to be impeded.
B13: Where two TLOs are in tension with each other, and both can be applied,
they can intensify constraints on states.
B14: The more substantial a crisis, shock, or geopolitical shift, the greater the
probability that it will compel a re-appraisal or undermining of a prevailing
ideological discourse and impel the search for a replacement or substitute frame.
37
B15: A frame or discourse will shift if changing socio-political circumstances
have a better fit with one frame versus another.
B16: Frame shifts will always be temporally and contextually contingent such
that sharply changing circumstances over time or sharply divergent circumstances
across the world will lead to the failure of TLOs to settle or align, or to settle or
align discordantly, or to the unsettling and misalignment of existing TLOs.
C. Rising TLOs
C1:
Dramatic shocks in the transnational domain will be slower to trigger
TLOs than domestic shocks trigger legal change in the national space.
C2:
A TLO which focuses in the beginning on a narrower issue with limited
legal, and perhaps, geographic, scope, will have a greater probability of rapid
institutionalization and impact.
C3:
The greater success experienced by TLO proponents with high alignment
in a narrow issue-area may create unexpected spillover effects that can stimulate
the rise of competing, countervailing, or counterbalancing TLOs.
C4:
Indicators harden soft law and thereby increase the legitimacy of a regime,
its normative settling, and subsequent institutionalization.
C5:
Proponents of a rising TLO may enhance their competitive edge by
migrating an incipient TLO’s epistemological foundations from a frame with less
legitimacy to one with more legitimacy.
C6:
Proponents of incipient TLOs will produce greater impacts where their
epistemological premises are sustained, supported, and developed by already
extant powerful IOs, such as the World Health Organization or the IMF.
C7:
Proponents of a rising TLO with expansive legal and geographic
aspirations may confront other rising TLOs that are better entrenched, with
stronger institutional support, or with more powerful proponents, and thereby
confront limits to their aspirations to a narrower legal or geographic scope.
D. Propagating TLOs
D1:
Transnational legal norms that emerge through consultation with
professionals who will implement those norms will have a greater probability of
settling and institutionalization.
D2:
A principal cause of the fall or contraction of a TLO is the withdrawal of
support, or internal fragmentation, of the legal complex around a set of legal
norms.
D3:
The construction of TLOs can be facilitated by a combination of coercion,
market discipline, and persuasion through epistemic networks, but their
configurations are historically contingent.
D4:
The probability of propagation and adoption by states increases if an
otherwise weak IO can attach its norms to the greater leverage provided by other
IOs, such as the IMF, World Bank or WTO.
D5:
An initial rapid success in establishing a TLO may lead to internal
contradictions or a backlash as certain norms emerge visibly and powerfully.
D6:
Propagation of a TLO across states may be facilitated by the ambiguity of
norms, since ambiguity provides room for national adaptations.
38
D7:
Bright-line rules or model laws may have a higher probability of adoption
because states can readily drop them into their statute books without much effort
and cost.
D8:
Initial local resonance with a transnational legal norm increases the
probability of its successful adoption and thus a higher rate of effective
propagation at the local level (Campbell 2004).
E. Contesting TLOs
E1:
TLOs have an inbuilt tendency towards issue expansion, overlap and
enmeshment.
E2:
Contests among TLOs can arise when one TLO inadvertently creates new
problems that generate attempts at new solutions through another TLO.
E3:
Contestation can increase if the institutionalization of a TLO raises actor
awareness that there are higher stakes in a legal order than actors at all levels had
previously recognized.
E4:
The higher the stakes for actors with different interests that are not
reconciled within a TLO, the greater the probability that some actors will work to
form a competing TLO.
E5:
Contests among TLOs will intensify the more powerful the respective
actors fighting for competing interests in any TLO space.
E6:
IOs that have the capacity to vary their legal technologies (e.g., standards,
model laws, legislative guides) — that is, the forms in which transnational norms
are cast — are able to fend off contests regarding a TLO more effectively than
IOs dependent on a single technology (e.g., conventions).
E7:
TLOs may gain a greater competitive or defensive advantage if they can
be aligned with complementary dispute resolution institutions that are more
effective than those of competitors.
E8:
The more effectively sections of the legal complex are integrated into
national and local lawmaking and implementation, the higher the probability of
institutionalization
E9:
The greater the facility of transnational lawmaking bodies to form
coalitions with the dominant legal specialists on an issue area, the more probable
their competitive advantage.
E10: The incipient conflict between TLOs, such as accountability and amnesty
TLOs, may be resolved by a de facto sequencing of the application of their norms
over time.
F. Institutionalizing TLOs
F1:
An incipient TLO that has high alignment with underlying issues but low
settling at the transnational level will have lower probabilities of becoming
institutionalized or take a different path to institutionalization than an incipient
TLO that is both highly aligned with an issue area and in which the legal norms
are substantially settled at the transnational level.
F2:
Where one or more incipient TLOs align with different subsets of an issue,
coordination can be more complex, potentially giving rise to tensions and, as a
result, institutionalization of the TLOs should be more uncertain.
39
F3:
Where one or more prospective TLOs develop complementary diagnoses
of problems and develop complementary legal norms to promote order, the
prospects for institutionalization of the TLOs should rise.
F4:
The tighter an alignment between a TLO and an issue the faster it will
produce normative settling.
F5:
Competition among TLOs or the threat of competition by another incipient
or existing TLO can compel quicker settlement as a defensive strategy by an actor
promulgating legal norms.
F6:
If there is a competition between two TLOs-in-the-making (i.e.,
competitive alignment), and one remains weakly unsettled and the other is more
strongly settled, the proponents of the latter may have an alignment advantage as
they seek to claim jurisdiction over an issue area.
F7:
If a legal norm that is settled at the transnational level is unsettled at the
national or local level (say pharmaceutical patent protection), actors may more
readily turn to create a new TLO or harness an existing one (say a human right to
health) as leverage to combat the settling of the first legal norm.
G. Nesting TLOs
G1:
A TLO that is “contextualized by ‘rule of law’” and incorporates
“transnational ‘rule of law’ discourse operates as a meta-TLO for all other
conceptions of legality in the sphere of the transnational.”
G2:
A sharp shock to prevailing forms of transnational legal governance over
fundamental global institutions can precipitate interventions by powerful global
governance actors to coordinate and integrate regulatory TLOs into an umbrella
mega-TLO.
G3:
A curvilinear relationship may exist between the properties of underlying
issue-areas and the emergence of a mega-TLO that can coordinate or integrate
micro-TLOs.
G3a: An issue-area of confined legal and geographic scope, with limited
actors and interests, will not lead to a multiplicity of micro-TLOs which
require a mega-TLO to integrate them;
G3b: An issue area which has more expansive legal and geographic
scope, with many actors, diverse interests, and higher stakes, may lead to a
proliferation of micro-TLOs which ultimately come to be integrated into a
comprehensive mega-TLO;
G3c: An issue-area which is vast in legal and geographical scope,
involves extraordinarily variegated actors with enormous economic stakes,
may generate multiple micro-TLOs with little prospect (at least in the
short-term) of an integrative mega-TLO.
H. Mapping TLOs
H1:
Transnational legal norms that emerge from below (e.g., from states and
localities, from industry and professions), may have a higher probability of
subsequent adoption in the originating states or localities than legal norms
generated from above and imposed on states.
40
G2:
Sequencing and timing of TLOs matters insofar as initial framing for
transnational legal norms and a TLO’s initial degree of issue alignment can lead
to internal contradictions and the “seeds of its own undoing.”
I. Resisting TLOs
I1:
The less the legitimacy of transnational lawmaking as it is perceived by
state and local actors, the higher the probability of national/local resistance to
transnational norms.
I2:
The less representative the stakeholders who produce transnational norms,
the more likely they will be perceived by local-national forces as externally
imposed alien solutions on weak countries, and the greater the local resistance.
I3:
If transnational legal norms are perceived to be instruments of imposition,
coercion, surveillance, or control by stronger actors on weaker states or local
actors, then the probability of resistance increases.
I4:
Where there are weak connections and continuity between members of the
legal complex in transnational settings and national/local settings, then
national/local legal sponsorship will more likely be lacking in capacity and will.
I5:
The less autonomous national and local legal institutions are from
domestic political actors that resist transnational legal norms, the more likely that
legal institutions will resist them.
I6:
While IOs may advance the interests of powerful nation states in order to
enhance a TLO’s effectiveness, they will resist pressure from these states where
succumbing to it threatens the legitimacy of the IO as a global actor.
I7: that the greater the national or local resistance to transnational legal norms,
whether from powerful nation states or blocs of states or even the purportedly
weak, the greater the probability that transnational normmakers will revise the
content of the norms, the composition of normmakers, or both.
I8:
The greater the degree of local resistance, the higher the probability that a
TLO will be still-born, discordant, or lead to the rise of a rival TLO.
J. Structuring TLOs
J1:
Certain structural forms will be better adapted to legal orders in some
issue areas than others.
K. Declining/Falling TLOs
K1:
TLOs are more likely to decline when key warrants of legitimation for a
TLO’s norms or normmaking organizations are undermined.
K2:
The process of translating soft law into indicators may sow seeds of
contradiction within a TLO.
K3:
High initial alignment and success in a narrow issue-area may create
unintended consequences and spillover effects that stimulate the rise of competing
TLOs that diminish over time the scope of the initially successful TLO.
K4:
The more inflexibilities built into a TLO (whether its texts or
organizational pillars), the greater the probability that disjunctions with
embedding and enabling contexts will lead to decline.
41
K5:
The greater the sunk costs involved in constructing a TLO, the more
resistant it will be to change.
K6:
Elimination of ambiguity and indeterminacy in transnational norms
introduces a brittleness in the substantive law itself which renders it less able to
adapt cross-nationally or to the social circumstances on which it is premised.
K7:
The conversion of soft law standards into the fixed meaning of indicators
will inhibit flexibility and adaptation to context.
K8:
Shifts in underlying balances of power that are salient to a TLO at all
levels (transnational, national, local) may break down their institutional
foundations.
K9:
The greater the competition for resources among actors engaged in
promoting TLOs in general, the greater the probability that one or more TLOs
will decline or fall.
K10: An inability to demonstrate the effectiveness of a TLO will eventually
undermine its claims and render it vulnerable to dismantling.).
L. Recursivity of TLOs
L1:
A faster pace of lawmaking might reflect resistance and hence an effort to
nullify the impact of new legal norms; or, conversely, a faster pace of lawmaking
might reflect an urgency to produce conforming behavior to legal norms that are
settled.
42
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