Transnational Health Law Beyond the Private/Public Divide: The Case of Reproductive Rights
| Author | Atina Krajewska |
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| DOI | http://doi.org/10.1111/jols.12111 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S220±S244
Transnational Health Law Beyond the Private/Public
Divide: The Case of Reproductive Rights
Atina Krajewska*
This article revisits the debates concerning the nature and patterns of
development of transnational law and global constitutionalism, looking
at the rapidly growing field of transnational health law. It first high-
lights a friction between two opposing theories of transnational law,
which view it as either a predominantly private or a predominantly
public construction. It goes on to argue that these two views need not
necessarily be seen as exclusive and diametrically opposed, but as two
distinct, yet interrelated, aspects of the same process in which legal
subjectivity is established in transnational law. The article studies the
emergence of legal subjectivity in the area of transnational law
regulating assisted reproduction technologies, and maps the two
different conceptions of transnational law onto different stages in the
process by which new subjects become legally visible. It contributes to
wider discussions concerning the nature of transnational law,
transnational health law, and legal subjectivity.
INTRODUCTION
This article revisits the debates concerning the nature and patterns of
development of transnational law and global constitutionalism, utilizing the
rapidly growing field of transnational health law (THL) as a case study. THL
is defined here as a complex set of laws combining international law as well
as domestic public and private law norms affecting cross-border health
issues, determinants, and solutions. This definition draws on the early
S220
*Birmingham Law School, University of Birmingham, Edgbaston,
Birmingham B15 2TT, England
a.krajewska.1@bham.ac.uk
Thanks to Jir
ÏõÂPr
Ï
ibaÂn
Ïand Chris Thornhill for taking the time to read an earlier version of
this article and for their insightful comments and suggestions. The article is one outcome
of the BA Small Research Grant (2015/16) No. SG153094.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
conceptions of transnational law as a body of law that encompasses `all law
which regulates actions or events that transcend national frontiers', including
public and private international law and `other rules, which do not wholly fit
into such standard categories.'
1
Despite decades of academic discussion,
scholars continue to disagree about the effects of globalization on domestic
and international law, and the degree of fragmentation
2
and privatization
3
pervading the legal system at different levels of law formation. They grapple
with the need to conceptualize a legal system that contains many sources of
obligation, in which no convincing rule of recognition has been formulated,
the institutions for adjudication are often non-judicial, and processes of
change are not easily articulated in terms of legal rules.
4
Consequently, much
transnational law theory consists of attempts to bring order into the inter-
national arena. These attempts often revolve around the notion of global
constitutionalism,
5
which focuses on the emergence of constitutional prin-
ciples and structures within the global context.
6
Inevitably, the analysis of
these processes varies considerably and has generated many controversies.
Tension exists between theorists who claim that the constitutionalization
of transnational law is to be found mainly within the realm of private law, in
private orderings increasingly independent of state structures, and those who
argue that transnational law is in fact predominantly public, in that public
authorities play a vital role in its constitutional formation. This distinction is
highly significant, not only because it represents two diametrically opposed
views of the nature of transnational law, but because it reflects two different
conceptions of the role of the law in shaping political, social, and economic
processes. It can also have important practical consequences. If one of the
implications of globalization is a diminution of the power of the state, we
might want to focus attention and policy efforts on non-state actors, such as
NGOs, private companies, and professional associations. If, however, we
discover that the role of the state is increasing, our attention might shift
towards solutions involving government institutions, administrative bodies,
and courts.
S221
1 P. Jessup, Transnational Law (1956) 1±8.
2 M. Koskenniemi, `The Fate of Public International Law: Between Technique and
Politics' (2007) 70 Modern Law Rev. 1; M. Koskenniemi and P. Leino, `Frag-
mentation of International Law? Postmodern Anxieties' (2002) 15 Leiden J. of
International Law 553.
3 A.-M. Slaughter, A New World Order (2004); S. Tully, Corporations and Inter-
national Lawmaking (2007).
4 B. Kingsbury, `The Concept of ``Law'' in Global Administrative Law' (2009) 20
European J. of International Law 23, at 29.
5 For instance: M. Loughlin and N. Walker, The Paradox of Constitutionalism:
Constituent Power and Constitutional Form (2007); J. Klabbers et al. (eds.), The
Constitutionalization of International Law (2009); N. Krisch, Beyond Constitu-
tionalism. The Pluralist Structure of Postnational Law (2010); C. Thornhill, A
Sociology of Transnational Constitutions (2016).
6 N. Walker, `The Idea of Constitutional Pluralism' (2002) 65 Modern Law Rev. 317.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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