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Transnational Legal Process and State Change: Opportunities and Constraints By Gregory Shaffer.

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Presentation on theme: "Transnational Legal Process and State Change: Opportunities and Constraints By Gregory Shaffer."— Presentation transcript:

1 Transnational Legal Process and State Change: Opportunities and Constraints By Gregory Shaffer

2 Introduction A Transnational Era and its Impact on Law Historical & contemporary US manifestation: Politics of judicial appointments and citations to IL and foreign law Term TL often used, but need clarifying conceptual work & empirical assessment Symposium issue: Essay builds a socio-legal framework for analysis, illustrates from 5 empirical projects that follow

3 What is Transnational Law and Legal Process? TL as Situational: Phillip Jessop: TL is all law which regulates actions or events that transcend national frontiers. TL as combination of public and private IL Craig Scott: Common principles developing to govern cross-border activities; can become systematized and non-statist

4 Harold Koh: TL as Flow TL= (1) law that is downloaded from international to domestic law…; (2) law that is uploaded, then downloaded: for example, a rule that originates in a domestic legal system,... which then becomes part of IL, and from there becomes internalized into nearly every legal system in the world; and (3) law that is borrowed or horizontally transplanted from one national system to another…

5 Modify: TL as Construction & Flow Transnational Law as Transnational Construction and Flow of Legal Norms: Law in which transnational actors, be they institutions or networks of public or private actors, play a role in constructing and diffusing legal norms, even if in large part the legal norm is taken from a national legal order, such as a powerful state like the US

6 Socio-legal Critique of Koh Failure to assess: (i) Production of transnational law (ii) Dimensions of change (iii) Conditions, mechanisms and factors explaining variation in such change: (iv) Never beams the searchlight of social science on processes of adoption; transplantation; adaptation; translation; bricolage; appropriation; rejection of TL

7 Transnational Legal Process/Orders Legal norms: Norms that lay out behavioral prescriptions issued by an authoritative source that take written form, although they need not be binding or backed by a dispute settlement or other enforcement system TLP: The process through which the transntl conveyance of legal norms takes place TLO: Collection of more or less codified norms and associated institutions within a given functional domain

8 Theory, Design, Methodology Theory/Analytic Framework : Seek to explain operation and effects of TLPs Research Design: Series of systematic studies of (1) interaction of transnational and national: (2) in regulatory spaces; (3) in different countries; (4) over time, (5) to assess patterns & variation Methodology: Empirical: qualitative and quantitative; mixed methods

9 5 Empirical Studies: Halliday Halliday (Bankruptcy law: China, Korea, Indonesia) -US, UK provide templates for global norms -Pivotal events: Berlin Wall, debt crises -IMF and WB and Asian Financial Crisis -UNCITRAL drew for Model Law; Legis. Guide -Indonesia: change and resistance -Korea: intermediaries; China: modeling

10 Empirical Study: Klug Klug (IP & competition law: South Africa) -opptys and constraints for post-Apartheid ANC -WTO regime and IP- pharmaceutical sector -AIDS crisis: WHO and health department -ICN (Intl Competition Network) Challenge drug pricing; black empowerment

11 Empirical Study: Rocha Machado Rocha Machado (Anti-money laundering law: Brazil & Argentina) -Basel Committee on Banking Supervision: 10 -FATF 40 Recommendations (reports; monitor) -UN conventions: 2002; Brazil: criminalize; financial integill unit; enlist -Argentina: largely symbolic in response to pressure

12 Empirical Study: Morgan; Kim et al Morgan (Municipal water services provision law and instns: Chile, Bolivia, Argentina) - Transnatl epistemic network: devlpment banks; OECD; MNCs; Water Council- transactional model; independent agencies; courts Kim, Boyle & Haltinner (primary education as HRt in low & middle income countries) - IMF structural adjustment vs UDHR/ICESCR/UN CRC; NGOs

13 5 Dimensions of State Change (1) Changing National Law and Practice: enactment & practice; substance & procedure (2) Changes in Boundary of State and Market: What State Does: State Expands; Devolves; Steers (3) Changes in Institutional Architecture of the State: Allocation of authority between executive, legislature, independent agencies, courts

14 Dimensions of State Change (cont) (4) Shaping Markets for Expertise and Expertises Role in Governance: new specializations- more technocratic forms of governance; individs/elites invest; serve as conduits (5) Shifting Accountability Mechanisms & Normative Frames -Monitoring, reporting, peer review within particular normative frames -New patterns of interaction and association -Examples- WTO; FATF; Conven Rights of Child

15 3 Clusters: Factors Explaining Location, Extent & Limits of State Change (1)The TLO: its legitimacy, clarity and coherence: 3 components (i) Legitimacy of TL & 4 mechanisms of change (coercion; reciprocity; persuasion; acculturation) -Legitimation as mechanism in 4 conceptions of power (agency; institutional; structural; productive) -Legitimacys 3 dimensions: input; throughput; output (UNCITRAL & bankruptcy; CRC and free education) (ii) Clarity of TL: Variation in features of law: hard & soft law (TRIPS & Competition norms) (iii)Coherence of TLOs: TLOs as complements or antagonists in fragmented system-affect degrees of freedom (TRIPS & WHO & access to medicines) (iv) Harnessing historic events: punctuated equilibria (FATF)

16 Explanatory Factors(2) Relation of TLO- Receiving State (2) : Intermediating Factors: Power Asymmetries and Intermediaries btw TLO & Receiving State Structural power: colonialism; financial instns -Implementation challenge: Symbolic vs Practical; Law-in-books vs Law-in-Action -e.g. Indonesia & bankruptcy Intermediaries: carriers/conduits; diagnose; monitor; translate; adapt; legitimate

17 Explanatory Factors re State Transformation (3) (3) Domestic Context: (i) Affinity with domestic demand in light extent of change at stake, (ii) in light of domestic power struggles, (iii) domestic institutional legacies, (iv) Consonant with local discursive frames -Translation and appropriation in light of own histories: e.g. competition law in South Africa; money laundering in Brazil; Chile & urban water services; bankruptcy law and China

18 Conclusions: 5 points TL critical for understanding how national instns shaped and understood; provides tools (i) Need identify dimensions of state change: 5 (ii) Heterogeneous Nature of TLP (competition) (iii) Conditional Effects: 3 clusters of factors (iv) Multidirectional Nature of TLP: Key of Recursivity in Studying TLP and State Change– adv. of frame around regulatory spaces, not levels of IL/natl (v) Cant reduce to realpolitick- role of law, lawyers & institutions; mediators; conveyors & natl resilience Need for further research: costs & payoffs

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