Edited by Jorge L. Fabra-Zamora
Chapter 4: Globaltransnational law challenges to theorizing about law
A noticeable tendency among the contemporary scholars dealing with “transnational activities” is that, while relativizing and blurring the demarcation line between law and non-law, they readily attach the label of “legality” to the respective regulatory mechanisms. Global/transnational “law” discourse, in that respect, seems to be premised on two important assumptions: first, that the empirical reality of the present-day globalized world requires moving beyond the traditional concept of international law because it no longer successfully depicts the nature of “raw data” of various regulatory and adjudicative phenomena taking place at the transnational level; and second, that the analytical rigor of the long-dominant positivist strand of jurisprudence, which insists on the criterial approach to law and its autonomous status, nowadays contributes more to the obfuscation than to the clarification of its subject matter. Both of these assumptions lead to the claims that significantly challenge our traditional theorizing about law. According to the first—substantive—challenge, global/transnational phenomena give rise to the birth of a novel, non-statist and post-modern concept of law. According to the second—epistemological—challenge, the nature of the inquired phenomena requires adopting new research strategies which go beyond the traditional method of the dominant analytical jurisprudence. This chapter scrutinizes both of these challenges. As regards the first of them, it will show that while the strong claim that we are in possession of some entirely novel concept of (global/transnational) law is not warranted, more modest claims regarding functional sphere of validity and genuinely new (global/transnational) sources of law merit significant weight. When it comes to the second claim, it will argue that the obsession with “law” as the “default descriptor” (Somek) for various global instruments of regulation and standardization stems largely from the erroneous assumption about the special, i.e. “exclusionary” nature of legal rules. Once the direct link between legal “normativity,” “validity,” and “bindingness” is exposed as unsubstantiated, the path is cleared for a more nuanced investigation about the nature of different phenomena that do not pass the threshold of “legality.” This, finally, implies that calls to substitute analyticity and criterialism with some sort of legal pluralist approach, which self-consciously blurs the lines between law and non-law, should be abandoned in favor of a refined analytical approach, which relies on a different sort of socio-legal investigation, the one that treats law as a normative order that is a product of specific historical development and that is as such in interaction with other social normative orders.
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