Spectres of Transnationalism: Changing Terrains of Sociology of Law
| Date | 01 December 2009 |
| Author | Roger Cotterrell |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00480.x |
| Published date | 01 December 2009 |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 4, DECEMBER 2009
ISSN: 0263-323X, pp. 481±500
Spectres of Transnationalism: Changing Terrains of
Sociology of Law
Roger Cotterrell*
The growth of `legal transnationalism' ± that is, the reach of law
across nation-state borders and the impact of external political and
legal pressures on nation-state law ± undermines the main foundations
of sociology of law. Modern sociology of law has assumed an
`instrumentalist' view of law as an agency of the modern directive
state, but now it has to adjust to the state's increasingly complex
regulatory conditions. The kind of convergence theory that underpins
analysis of much legal transnationalism is inadequate for socio-legal
theory, and old ideas of `law' and `society' as the foci of sociology of
law are no longer appropriate. Socio-legal theory should treat law as a
continuum of unstable, competing authority claims. Instead of taking
`society' as its reference point, it should conceptualize the contrasting
types of regulatory needs of the networks of community (often not
confined by nation-state boundaries) that leg al transnationalism
addresses.
INTRODUCTION
This paper's focus is on legal transnationalism.Itake that term here to cover
two kinds of familiar phenomena. The first consists of emerging or newly
expanded regulatory regimes with supranational scope or ambition: for
example, international human rights, transnational regulation of the internet
and of intellectual property, international criminal justice, international
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ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, Queen Mary, University of London, Mile End Road,
London E1 4NS, England
R.B.M.Cotterrell@qmul.ac.uk
This the revised and expanded text of a plenary lecture given at the conference to
celebrate the twentieth anniversary of the International Institute for the Sociology of Law,
On
Äati, Gipuzkoa, Spain, 7±10 July 2009. I am grateful to Reza Banakar, Volkmar
Gessner, Pierre Guibentif, Terence Halliday, Carlos Lista, Vittorio Olgiati, Sol Picciotto,
Boaventura de Sousa Santos, and anonymous reviewers for comments.
financial and trade law, international commercial arbitration and modern lex
mercatoria, and WTO law. Increasingly, laws (and forms of regulation that
some observers call law and some do not) reach across state boundaries ± but
often not in the manner of traditional international law linking states as
subjects. Sometimes transnational law bypasses state authorities, or uses
them as conduits for regulation created and interpreted primarily by agencies
other than state authorities. Sometimes it is created `unofficially' in
professional practice or as collective self-regulation. Then, more `official'
law has to decide how to deal with it. Often transnational law is intended to
affect individuals, organizations or groups directly. So `transnational' refers
to a reaching across nation-state borders. The second, no less important,
aspect of legal transnationalism reflected here is the influence exerted
directly on the regulatory policies and practices of nation states by economic,
cultural, and political pressures taking shape outside their borders, and to that
extent beyond their control.
Legal transnationalism haunts sociology of law or socio-legal studies (the
terms will be used interchangeably here) in a somewhat spectral way. It is
something seen but not seen; real but not fully real as a presence; mysterious,
hard to pin down, and certainly hard to view clearly and as a whole. Much
research is now being done on transnational regulatory processes, institutions
and aspirations, but it is difficult to see how these research developments
affect outlooks in sociology of law in general.
1
Like a ghost, trans-
nationalism flits around socio-legal studies, revealing aspects of itself in
research topics and findings, but rarely allowing a view of something larger
that might be forming, or might need to form: perhaps a new general view of
law, or a new conception of the socio-legal field to reflect the impact of
transnationalism.
This paper does not focus on particular fields of transnational regulation.
Its concern is with the cumulative effect of their development, and the social
forces they represent, on the foundations on which modern sociology of law
has been constructed. Do these foundations need excavating and re-laying in
the light of legal transnationalism? This paper's argument is that, in impor-
tant respects, they do. The theoretical implications of legal transnationalism
unsettle the basis of `law and society' research ± indeed they challenge its
most basic concepts. Specifically, the meaning of both `law' and `society' in
the socio-legal field needs to be re-examined radically in the face of legal
transnationalism. The result, this paper claims, should be to alter the outlook
of socio-legal studies in general.
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1 For a valuable outline of relevant issues, see V. Gessner, `Global Approaches in the
Sociology of Law: Problems and Challenges' (1995) 22 J. of Law and Society 85.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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