Domestic courts, transnational law, and international order
| Author | Filiz Kahraman,Nikhil Kalyanpur,Abraham L. Newman |
| DOI | 10.1177/1354066120938843 |
| Date | 01 September 2020 |
| Published date | 01 September 2020 |
| Subject Matter | 25th Anniversary Special Issue |
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https://doi.org/10.1177/1354066120938843
European Journal of
International Relations
2020, Vol. 26(S1) 184 –208
© The Author(s) 2020
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DOI: 10.1177/1354066120938843
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Domestic courts, transnational
law, and international order
Filiz Kahraman
University of Toronto, Canada
Nikhil Kalyanpur
Princeton University, USA
Abraham L. Newman
Georgetown University, USA
Abstract
This article revisits the relationship between law and international order. Building on legal
research concerned with transnational law, we argue that domestic courts are endogenous
sites of international political change. National courts are constitutive of international
order by generating new rules, adjudicating transnational disputes, and bounding
state soverei gnty. We illustrate the ways in which national courts create new political
opportunities by updating three core international relations theory debates. Recognizing
the role of domestic courts as global adjudicators enhances our understanding of regime
complexity and internation al forum shopping. By re-interpreting aspects of conventional
international law, and engaging in cross-border dialogue, domestic courts challenge our
understanding of international diffusion and judicialization. By redefining the boundaries of
state authority and sovereignty, national courts create potential for conflict and cooperation.
A transnational law perspective illustrates the porous nature between domestic and
international spheres, highlighting how domestic courts have become adjudicators for state
and non-state actors that operate across mainstream levels of analysis. Our approach calls
on scholars to move beyond analyzing national legal systems as mechanisms of compliance
to instead consider domestic courts as co-creators of international order.
Keywords
International order, customary international law, norms, constructivism, global
governance, transnational actor
Corresponding author:
Filiz Kahraman, University of Toronto, Sidney Smith Hall, Room 3018 100 St. George Street, Toronto, ON
M5S 3G3, Canada.
Email: filiz.kahraman@utoronto.ca
938843EJT0010.1177/1354066120938843European Journal of International RelationsKahraman et al.
research-article2020
25th Anniversary Special Issue
Kahraman et al. 185
Law is a cornerstone of international order—the rules and norms that regularize the
behavior of global actors (Kratochwil, 1991; Onuf, 2012). Legal principles enumerate
the key actors in the international system and the boundaries of their authority, while
structuring the nature of their interactions. Neoliberal and power-based approaches rec-
ognize the central role of law in influencing the parameters for both cooperation and
conflict, while sociological theories map the mutually constitutive nature of legal institu-
tions and norms for state preferences and behavior (Hurd, 2017; Koremenos, 2016).
These paradigmatic debates generally focus on the formal and informal rules that operate
at the international level. Building on recent work on transnationalism and developing
research on the global dynamics of domestic legal systems, we delineate a research
agenda that shines light on the multiple pathways by which domestic law and courts
shape international order. We believe that attention to domestic law not only helps to
rethink how law functions in global politics but also opens up broader theoretical conver-
sations on the sources, dynamics, and function of international order.
National legal systems are routinely delegated authority to resolve international and
transnational conflicts, providing the commitments that rationalist scholars see as cen-
tral to effective governance. National courts enforce (or fail to enforce) states’ obliga-
tions under international law and the rulings of international tribunals and dispute
mechanisms (Hillebrecht, 2012; Powell and Staton, 2009; Simmons, 2009). Their role,
however, goes beyond simply implementing international rules written by international
bodies. Domestic courts must resolve conflicts of law as globalization brings legal sys-
tems into contact with one another. Courts often serve as platforms to settle disputes
between global players, using their adjudication role to even extend their authority
extraterritorially (Kaczmarek and Newman, 2011; Putnam, 2016, 2009; Raustiala,
2011; Whytock, 2009).
As these courts move to engage in transnational governance, they do not simply solve
functionalist problems but may also transform global politics. They do so by altering the
sites of political contestation as well as by structuring the nature of political interactions
(Farrell and Newman, 2014). International political battles over key concepts such as
human rights, property rights, and sovereignty then unfold through courts in places like
London, New York, and New Delhi. Ultimately, we argue that domestic courts may serve
as sites for endogenous change in the international order. That is, they can redefine the
participating actors, shape the critical norms available, and influence the structure of
their interaction.
To demonstrate these theoretical and empirical claims, we integrate insights from the
legal scholarship on “transnational law” to rethink the scope of international law
(Halliday and Shaffer, 2015; Shaffer and Ginsburg, 2012; Whytock, 2009). This litera-
ture underscores the importance of moving beyond the domestic and international divide
to analyze how law and legal actors operate across national boundaries (Jessup, 1956). In
doing so, it presents an expansive view of who makes and interprets global legal norms
and which texts may matter. To provide an initial roadmap of how our approach could
alter traditional debates, we focus on three analytic areas—dispute resolution, rule gen-
eration, and state authority—that sit at the core of what international relations (IR) schol-
ars generally view as the remit of international law. This research agenda, then, focuses
attention on the key role that domestic law and courts play in shaping who resolves
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