The chapter seeks to unpack two problematic features of the ‘rule of law’, a concept so widely used to, on the one hand, depict a political order based on the legality principle and, on the other, to refer to a historical variation of a legal order, typically succeeding or supplanting authoritarian arbitrary rule. What makes the concept’s use so questionable is that, in the first case, it so often becomes a technical term to describe what is, in fact, an extremely fragile and precarious constellation of norm generation, contestation and adaptation that rests on a set of processes – democratic or otherwise – which themselves are inseparable from any particular practice of the rule of law. In the second case, while a historical depiction of the rule of law in a certain place at a certain time should remind us of the need to assess the rule of law in very concrete, contextual terms, this is typically not the case. Rather than placing each example of the ‘rule of law’ within the context of a particular and unique socio-economic, cultural (including religious), political setting, too often we find that even the historical depiction becomes detached from its (often problematic, even bloody) setting to be represented as a detached and universalized reference. Both the conceptual neutralisation and its universalization has given the rule of law a bad name, especially in places where it serves as summary justification for foreign ‘technical’ and ‘legal’ assistance projects with little regard to local interests, traditions and existing legal pluralist norms.
This chapter offers a few reflections on the state of transnational law and transnational legal theory at a time in which the jury still is out with regard to its verdict on whether transnational law should be considered a field, a concept or a (likely promarket, neoliberal) ideology. Casting doubts on TL either in terms of being a neatly demarcated and regularly adjudicated field of doctrinal law or as a conceptual elaboration which we would locate somewhere between private and public international law in the way outlined by Philip Jessup in the 1950s, the chapter sets out to take seriously the lingering and persistent claims which situate TL in the greater transformation of state-based, political governance of economic affairs and the continuing trend towards privatization and corporate ownership of formerly public regulatory prerogatives. Seen as part of a wholescale shift to private governance, forum shopping and the curtailing of state intervention, TL is today often squarely associated with an intensifying constellation of globalized markets in which the authority of regulatory agency has widely shifted to private actors. Acknowledging the weight of such assumptions, we need not only to reconsider law’s and legal theory’s receptivity to normative critique but also to trace more carefully the lines of these longstanding concerns about TL. In the first instance, TL seems to have forever been prompting negative reactions to what is believed to be its fundamentally neoliberal normative orientation. Often understood as a field of law embodying the neoliberal rollback of state-based, democratically generated legal institutions, rights and safeguards in favour of a ‘winner takes all’ system where law, along with other power-sustaining institutional frameworks, merely serves to empower a small fraction of society, TL appears to have got off to a bad start. But in response, rather than trying to ‘push back’ against TL with the goal of mobilizing an alternative legal framework, this chapter calls for a critical engagement with TL and for a critical resistance of TL’s neoliberal potentials. Through an engagement with these concerns and by proposing a reassessment of legal theory in the context of critical social and political theory, the chapter will test TL’s ability to provide a robust methodological framework for a critical legal theory in today’s global, neoliberal constellation.