What Is Transnational Law 1

What Is Transnational Law? A Theory of Transnational Private Law. Portland, OR/Oxford: Hart Publishing. Pp. xvi + 366. $75.00 cloth. Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels’s The Concept of Law from a Transnational Perspective and Calliess and Zumbansen’s Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law’s extension beyond the boundaries of nation-states. THE SCOPE OF TRANSNATIONAL REGULATION The idea that law has “spilled out” beyond the borders of the nation-state is now commonplace. Merchant communities that operate across national borders make regulation that effectively binds them as law in their dealings with each other. Europeans are now used to the idea that much of their law comes not from their own nation-state sources but from Europe-wide institutions. International criminal justice increasingly claims to reach out to catch gross violators of human rights irrespective of the state they happen to be in or the place of their alleged crimes. Judges in different nations draw on each other’s ideas in what are beginning to appear as transnational judicial communities. Conventions authorized by international law create rights and duties for people in cross-border relationships. Human rights instruments and agencies carry legal ideas around the world, creating new expectations of rights and protections not limited by national borders. For many scholars, a new term has seemed necessary to indicate new legal relations, influences, controls, regimes, doctrines, and systems that are not those of Roger Cotterrell is Anniversary Professor of Legal Theory at Queen Mary, University of London. I am grateful to Paul Schiff Berman for valuable comments on a draft of this article, and to participants in discussion of an earlier paper on related themes that I presented at the Socio-Legal Studies Association Annual Conference at the University of Sussex in April 2011. The author may be contacted at Department of Law, Queen Mary, University of London, Mile End Road, London E1 4NS, UK. r.b.m.cotterrell@ qmul.ac.uk. Tel: (44) 20 7882 3946. 500 Transnational Law nation-state (municipal) law but, equally, are not fully grasped by extended definitions of the scope of international law. The new term is “transnational law,” widely invoked but rarely defined with much precision. Often, the term refers to extensions of jurisdiction across nation-state boundaries, so that people, corporations, public or private agencies, and organizations are addressed or directly affected by regulation originating outside the territorial jurisdiction of the nation-state in which they are situated, or interpreted or validated by authorities external to it. Sometimes, it refers to regulation guaranteed neither by nation-state agencies, nor by international legal institutions or instruments such as treaties or conventions. Sometimes, it signals a space for regulation not yet (fully) existing but for which a need is felt in cross-border interactions. The international lawyer Philip Jessup wrote that transnational law includes “all law which regulates actions or events that transcend national frontiers” (Jessup 2006, 45). In his view, national and international law would be part of it insofar as they have these effects, and it could address both public (state and governmental) and private (nongovernmental, civil society) actors (Tietje and Nowrot 2006). However, other writers treat transnational law as conceptually distinct from national and international law because its primary sources and addressees are neither nation-state agencies nor international institutions founded on treaties or conventions, but private (individual, corporate, or collective) actors involved in transnational relations (for discussion, see Zumbansen 2002; Calliess 2007, 476). Another controversy is as to whether substance or procedure should be emphasized. Is transnational law primarily made up of rules applying directly across national borders, or is it mainly coordinating regulation harmonizing or linking substantive rules that may differ between states? The latter suggests a pluralistic approach (Berman 2007) recognizing and preserving legal difference but smoothing interactions between legal regimes—a kind of transnational conflict of laws system. Its main focus might be procedural. The substantive approach, by contrast, could envisage convergence in regulation, a potentially monistic approach, a “universalist harmonization” (Berman 2007, 1164, 1189–91) in which transnational law aims at a gradual spread of legal uniformity across national boundaries, and moves toward a “world law” (cf. Berman 1995). Perhaps more realistically, it might emphasize the way regulatory regimes seek uniformity across limited (usually functionally defined) transnational operational spheres. Thus, basic questions about transnational law remain. First, does this law still rely fundamentally on nation-state law and international law (the latter supported by and recognizing the sovereignty of states), or does it entail a new relationship between law and state—in which some sources of law now exist entirely outside the ambit of state authority? Second, if transnational law regulates transnational relations, are these specifically the relations of individuals, corporations, and associations in civil society or, as Jessup thought, can it also embrace relations involving state and governmental agencies? In other words, is it centrally transnational private law, or is that too narrow a conception? Third, is transnational law building a new regime (or regimes) of substantive law existing alongside state law; or is it mainly a procedural, coordinating law, linking state and other legal regimes to serve transnational networks? Does it point toward a gradual transnational unification of regulation, or must 501 502 LAW & SOCIAL INQUIRY it remain a vast array of intersecting, often conflicting, regulatory regimes (see, e.g., Snyder 1999)? These questions defy conclusive answers. However, areas of established or embryonic regulation often associated with transnational law can easily be listed. Individually, many items on the list might be assigned to traditional legal categories (municipal law, international law, nonlegal regulation) but, taken together, perhaps they imply a change in the legal landscape, if only because of the vast regulatory scope they cover. The list could include international human rights law, international criminal law, international trade law, international financial law, international environmental law, Internet regulation, international commercial arbitration practice and the transnational regulation of merchant communities (lex mercatoria), EU law, the law of the World Trade Organization, private self-regulation in transnational industries, and transnational corporate governance codes or principles. Equally available for consideration is a mass of regulation (guidelines, standards, norms, principles, and codes, together with procedures for norm creation, adjudication, and enforcement) established by associations, nongovernmental organizations, and administrative agencies, in addition to the “internal” collective regulation of transnational corporations and corporate groups. Finally, also in the mix of transnational legal phenomena could be the extraterritorial application and effects of national laws, as well as extradition practices, by which the practical reach of national jurisdiction is extended into foreign states. THE VALUE OF MODELS AND MAPS The range of all this is surely disconcerting. Is transnational law a category at all? And is it all “law”? Lawyers often quickly make judgments as to what is and is not law in such a motley regulatory mix. They judge on the basis of common understandings about the concept of law, probably most centrally the idea that all law is, in one way or another, the law of the nation-state. If international law is significant as law, a matter that even now is not universally assumed (Goldsmith and Posner 2005; cf. Berman 2006), this is often on the basis that it is a projection of the sovereignty of nation-states (which authorize the making of treaties and international conventions and the recognition— explicitly or through their practice—of international customary norms). From this viewpoint, transnational law, when properly called law, is an extension of national sovereign jurisdictions, or the creation (through recognized mechanisms of international law) of law by international agencies or through international instruments ultimately validated by the express or tacit authority of sovereign states. Viewed in such a perspective, a category of transnational law apart from municipal or international law might seem redundant. However, the range and variety of regulation operating beyond nation-state boundaries may now have become so considerable and its impact so substantial that a different view is needed. To invoke an idea of transnational law is to suggest that law has new sources, locations, and bases of authority. Adding “transnational” to “law” is like adding a question mark: querying modern Western jurisprudence’s state-centered understanding of law. It is also to query whether ideas and methods in international law Transnational Law need revising (see, e.g., Koh 1996; Berman 2005), to accelerate the ongoing development of this field away from its traditional focus on the relations of states, toward a broad concern with the regulatory problems of international society. Is it enough to look merely at specific fields of regulation—for example, international criminal justice or lex mercatoria—and ignore any general category of transnational law? In this article, with two sharply contrasting books as reference points, the problems of analyzing transnational law as a general idea are the focus of attention. My interests are in both law and society studies and legal theory, and for someone with such a background an attempt to conceptualize this new field (if that is what it is) can hold attractions. Perhaps it might help to solve some basic problems of legal theory— allowing a better understanding of the changing nature of law as an idea, as well as some of its seemingly enduring features. From a law and society standpoint, a general inquiry about the nature of transnational law might offer a framework for comparing empirical sociolegal studies in different cross-border contexts. If a useful model of transnational law could be devised—a working notion of what might link together social phenomena under this conceptual label— perhaps the possibilities of relating together studies of transnational legal developments in seemingly disparate areas could be enhanced. Theoretical interpretations of historical sociolegal developments in diverse fields—viewed through a “transnational” lens— might show commonalities or interesting parallels and divergences otherwise missed. For the law and society scholar, the use of a concept of transnational law could help guide the selection of problems for empirical study and the formulation of hypotheses. It could help in mapping a field of phenomena and organizing ideas (to be tested in research) about their nature. But juristic interests in a concept of transnational law are likely to be very different. For the jurist and practical lawyer, crucial issues may be about conflicts of laws and of legal authorities. Is it becoming harder to identify valid law in a transnational context? Juristically, what is to be made of “soft law”1 (often linked to legal authorities but ambivalent in its legal significance)? Is it an irrelevance or a confusion in strictly legal terms, or something whose half-hearted designation as law (but not “hard” or enforceable law) suggests that some account has to be taken of it, if only as doctrine (rules, principles, guidelines, etc.) perhaps on the way to becoming law and acquiring some legal authority. Perhaps the potential proliferation of kinds of legal authority (and the dilemma of navigating within them) is what really suggests to some jurists a need for conceptual mapping in this area. Closely related may be concerns about the “de-formalization” and “fragmentation” of established legal regimes (and so of their authority), noted especially by scholars and practitioners of contemporary international law (Higgins 2006; Michaels 2009, 249; Calliess and Zumbansen 2010, 271). But fragmentation seems a growing feature of law in general, so that the concept of legal pluralism, its use once largely confined to sociolegal scholars and especially legal anthropologists, is now part of the everyday discourse of well-informed jurists (Berman 2009; Michaels 2009). In a situation in 1. Usefully defined as “regulatory instruments and mechanisms of governance that, while implicating some kind of normative commitment, do not rely on binding rules or on a regime of formal sanctions” (Di Robilant 2006, 499). 503 504 LAW & SOCIAL INQUIRY which old ideas of unity and system in law are insecure (Graver 1990), the need to find new ways to interpret and manage legal complexity juristically is easily felt. Practicing lawyers, as a professional group, and the community of law and society scholars both have an interest in getting a sense of the whole range of law so as to be able to order and develop their activities in this realm of “the legal.” As researchers on law (even if with contrasting purposes), they need a way to orient themselves to the changing character of sociolegal phenomena. To adopt John Austin’s metaphor in defending his idea of a general jurisprudence, they need a map of law—a chart to give perspective on its range and structure (Austin 1885, 1082) and the lines of its past, present, and likely future development. So the idea of conceptualizing transnational law to provide a map of law’s changing scope and features makes sense in both juristic and sociolegal contexts. Admittedly, Austin saw law mapping as important for newcomer law students, but perhaps he was just flattering his legally knowledgeable audiences by not claiming that they had the same needs. Indeed, since probably most nonspecialist lawyers and law and society scholars are relative newcomers in confronting current transnational regulation as a whole, the idea of the map to provide basic bearings seems very relevant. TRANSNATIONAL LAW IN LEGAL PHILOSOPHY For a legal philosopher, the aim in trying to conceptualize transnational law could be very different from that of the lawyer or sociolegal scholar. For Detlef Von Daniels (2010, 4), for example, the development of “a concept of law from a transnational perspective” is “a way to save jurisprudence as a philosophical discipline.” The stakes are that high. Since conceptual study of law has been so central to legal philosophy (insofar as it has aimed to develop philosophical theories of the nature of law), the issue is whether legal philosophy’s explanations of law can cope with the new (or newly prominent) phenomena of transnational law, or whether its ignoring of these phenomena (one of Von Daniels’s key complaints) undermines the whole legal theoretical house of cards that the philosophers have built. Can legal philosophy’s existing resources encompass transnational law? More precisely, can the concept of law, endlessly refined and disputed in legal philosophy, be made to embrace legal transnationalism; that is, law no longer understood in its “central case” as being state law? As Von Daniels (2010) notes, legal philosophers today almost always think in terms of nation-state law (138). Whatever their internal disagreements, their scope of argument typically stays inside this intellectual box. Even international law receives scant attention in the current literature of legal philosophy. More fundamentally, the kinds of phenomena that writers on transnational law attach much attention to—“private” legal regimes (existing apart from the public authority of the state and international law), transnational agencies, institutions, obligations and jurisdictions, and the influence of nonstate actors on the creation and guaranteeing of regulation—do not even figure on the horizon of interest of most legal philosophers (see Von Daniels 2010, 1). In this respect, much AngloAmerican legal philosophy is out of step not only with social science, which addresses, for example, the growth of cosmopolitan regulation (see, e.g., Held 2010), Transnational Law but also with broader approaches in moral and social philosophy (see, e.g., Gould 2007). A few scholars, rather than merely giving up on legal philosophy’s myopic character, have tried to do something about it, for example by considering challenges for legal philosophy posed by legal pluralism (Melissaris 2009; Culver and Giudice 2010), or by the legal structures of the European Union (e.g., MacCormick 1993; Barber 2006). Most interestingly, however, Von Daniels’s book The Concept of Law from a Transnational Perspective (2010) undertakes a “systematic reconstruction” (87) of H. L. A. Hart’s legal theory to extend its reach beyond state law. In this way it tries to adapt one of the most central strands of existing Anglo-American legal philosophy to embrace transnational law. I suggest that more enlightenment for law and society researchers is to be expected from social-scientifically-oriented juristic inquiry (exemplified by the second book on which this article will focus) than from legal philosophy. Nevertheless, Von Daniels’s discussion indirectly suggests ideas that need to be considered in modeling transnational law as a focus of sociolegal research. Law and society studies and juristic inquiries should not become embroiled in debates about what law in some timeless sense “really” is. But a provisional model of transnational law, developed solely to aid empirical research and help to orient regulatory practice—that is, to map a field that still needs exploring— might draw lessons from the conceptual travails of legal philosophy. This is what Von Daniels’s book offers here. The first half of his text focuses not on Hart but on Jürgen Habermas, whom Von Daniels sees as important for having tried to conceptualize law in a broad sociohistorical context. The discussion covers much ground, but Von Daniels’s key argument is that, for all the richness of Habermas’s contextualization of legal development in Western history, he does not provide a sufficiently nuanced and inclusive concept of law. Habermas fails to recognize the sheer variety of legal regimes (including merchant law and canon law existing in ambiguous relations with the state), and no unambiguous view of law arises from his writings as a whole.2 Overall, Von Daniels’s discussion of Habermas looks like a ground-clearing exercise—historical inquiry is revealed as no substitute for conceptual study in philosophy. He subjects Hart’s concept of law to equally serious (if very different) criticisms. But whereas, in time-honored legal philosophical fashion, the criticism of Habermas clears the way for an entirely “fresh start” (cf. Hart 1994, 79) taking little from what has been critiqued, the criticism of Hart justifies a sympathetic “systematic reconstruction” of Hart’s concept of law, which provides the main focus of Von Daniels’s book. The key stages in the argument can be briefly sketched. Hart’s concept of law is widely understood as “the union of primary and secondary rules” (Hart 1994, 79). However, Von Daniels thinks a regime of primary (obligation-imposing) rules alone could amount to “law,” and Hart’s theory would allow law in embryonic form to be 2. Why this elaborate study of Habermas is included is ultimately not very clear. The main point seems to be that a sociohistorical account of law (1) is flawed if it fails to recognize the great diversity of state and nonstate forms of law revealed by legal and political history, and (2) cannot avoid the need for a serious conceptual inquiry about the nature of law. The absence of such an inquiry in Habermas’s work leads to shifting, inconsistent sociopolitical images of law. 505 506 LAW & SOCIAL INQUIRY thought of in these terms, although Hart himself did not develop this possibility. Von Daniels argues, however, that certain conditions, which Hart did not identify, are necessary for primary rules to be identified as law. The rules would have to be (1) always multilateral (referring to judgments of proper behavior relating to a group, not just expressing an individual’s personal moral convictions), (2) decisive (unlike moral rules that can be surrounded by ambiguity), and (3) “justice apt”—that is, concerned with “the right and proper thing to do,” “the done thing,” or what is “fair” (2010, 101). These conditions would identify “the legal” in some basic way. What then of Hart’s secondary rules, which supplement and procedurally support the primary rules? Their function, for Von Daniels, is to institutionalize practices, including the practice of primary rules. But, importantly, he notes that the use of secondary rules is not confined to law, and so secondary rules cannot serve the role Hart assigns to them of identifying a central and distinctive component of law. They are a feature of institutionalization in many organizations (Von Daniels 2010, 113–16).3 The union of primary and secondary rules is needed to institutionalize and develop law with elaborate agencies and practices (and not just in the nation-state, but also in subnational and transnational contexts), but it is not essential for the existence of law. Primary rules (subject to the three conditions indicated) identify law; secondary rules do not (though they are practically necessary for any developed legal regime). However, because there can be a variety of legal systems or regimes interacting in the transnational environment, it is important, in Von Daniels’s view, to envisage a third category of rules, which he calls linkage rules. These are hinted at by Hart (but not developed) in discussing relations between international regimes. They (1) allow the (purported) validation, by one system, of rules in another; (2) allow the completion, by one system, of rules established in another; and (3) allow the recognition of rules of one system by another or the delegation of rule-creating powers between systems.4 LAW AS INSTITUTIONALIZED DOCTRINE For Von Daniels, this conceptual structure allows wide recognition of many kinds of transnational regulation as law, and of processes for ordering their relations. He also makes brief, relatively undeveloped remarks about the kinds of sanctions that can be used in different kinds of legal regimes, and about different kinds of moral judgments that could bear on the comparison of regulatory regimes. Here, just two possible areas of criticism of his thesis will be outlined, one in relation to his use of Hart, the other in relation to his own view of law. As regards the former, he claims that the idea that primary rules alone could be an embryonic form of law “is not contrary to Hart’s writings” (87) but merely undeveloped in them. Later, Von Daniels’s claim is firmer: Hart’s interpretation is “that a simple regime of primary law 3. The point has been made before (see Colvin 1978, 201). 4. Von Daniels claims that, unlike primary and secondary rules, linkage rules are not accessible to members of a legal system from a Hartian “internal” point of view but only as a matter of “external” description because, by definition, they operate between legal systems. “Only a descriptive legal theory can demonstrate that all legal systems are interwoven into a net of legal systems . . . of which the official legal discourse [of a single system] captures only a part” (Von Daniels 2010, 163). Transnational Law can be identified as a legal one” (143). But this is surely simply wrong. Hart (1994, 94–95) is explicit: the introduction of secondary rules marks the transition from a prelegal to a legal regime. A regime of social rules needs this union if it is to be clearly recognizable as law. Although Von Daniels (2010, 143) thinks that international law (which, in Hart’s view, is basically just a set of primary rules) is law for Hart, in fact Hart carefully avoids any such claim and treats ordinary usage of the term “international law” as based only on an “analogy” with law understood in the conceptually adequate sense (Hart 1994, 237; Payandeh 2010). Von Daniels is right to say that the union of primary and secondary rules is not, in itself, an idea that adequately distinguishes law from other institutions or regimes, but this fundamental problem should not lead to rewriting Hart to make it appear that primary rules alone can be the basic idea of law for him. Hart does not set out to offer a definition of law, but he does want to suggest that the union of primary and secondary rules is at the center of law as an idea, and that it provides a key insight for legal theory (Hart 1994, 98–99). If the union of primary and secondary rules is displaced from the center of the concept of law, there is nothing else to take its place in Hart’s thought. If Hart’s insight presents difficulties, what is needed (if the aim is to build on his work) is to consider whether the insight can be adapted to be more useful, not to claim that an entirely different founding idea (law as primary rules) which is not Hart’s can be a legitimate basis for reconstructing his theory. As noted earlier, Von Daniels’s own view of law in embryo form is as primary rules that are “multilateral,” “decisive,” and “justice apt.” But each of these three claimed marks of the legal is problematic. As regards the last, “reference to justice” is “a primary indication of something being a legal rule” but instead of “justice,” one “could use the word ‘fair’, [or] call a behaviour ‘the right and proper thing to do’, or even just ‘the done thing,’ signalling that the rules belong to the ‘legal realm’ ” (101). He uses this criterion to distinguish legal rules from mere etiquette rules, but the reference to the “proper thing” or “done thing” could easily embrace rules of etiquette. And, while “fairness” is unfortunately not an essential attribute of legal rules, it can be a basis for moral judgments. So the “justice apt” criterion remains mysterious. Nevertheless, Von Daniels’s other two criteria of the legal are more significant in the context of this article because their problems point to more constructive analyses. First, what does multilateral mean? The idea is that legal rules depend on commitment to them by the group to which they relate, whereas moral rules could be adopted by an individual without reference to other people as a purely personal conviction (Von Daniels 2010, 103). However, it is not clear that this difference in attitudes to legal and morals always necessarily applies. One could feel obligated to a legal rule as a matter of personal conviction, even if others did not. Is the point, rather, that legal rules have been collectively affirmed by the group, whereas moral rules may not have been? Surely the issue is not “unilateral versus multilateral,” but that for law the group (not each individual member) sets in place or affirms the rules. But that requires the recognition of some agency to establish, guarantee, or interpret rules (even if this is an organization of the group as a whole). This is a matter that, in Hartian terms, entails the use of secondary rules. Second, Von Daniels claims that what ultimately distinguishes legal from moral rules is that legal rules are decisive (105). But again, for this to be true, in a way that is 507 508 LAW & SOCIAL INQUIRY different from the decisiveness of settled group morality, there will be a need for “official” practices that make law decisive. Legal rules can be decisive in the face of disagreement or challenge only when agencies of some kind are available to formulate these rules, adjudicate and interpret them, or take steps to enforce them. Hart saw the need for secondary rules in precisely this context. What this points to is the centrality of institutionalization of rules through established practices of managing them. Von Daniels sees nothing specifically “legal” about institutionalization. To link it specifically to law, it would be necessary to focus on the existence of agencies specifically tasked with creating, interpreting, or enforcing primary rules. But for Von Daniels (113–14), the problem would remain: how to link these institutional practices conceptually. In Hart’s terms the problem would be how to explain what makes secondary rules a conceptually coherent category. The matter is surely unanswerable as a philosophical problem; that is, a problem of identifying the essence of law without reference to law’s variability in its sociohistorical contexts. But what if Hart’s concept of law is contextualized: that is, adapted to make it a model for use in sociohistorical inquiry about kinds of regulation that could be associated with law? Then various questions would arise. First, why limit regulation to rules? As noted earlier, what is discussed in the context of transnational law often includes much more than rules (guidelines, principles, concepts, etc.). Why not think in terms of “doctrine,” a wider concept than rules and one implying many kinds of normative ideas? Second, why not abandon the dilemma of conceptualizing secondary rules as a category and, instead, merely look (via empirical sociohistorical inquiries) for the existence of some agencies specifically concerned with creating, interpreting, and enforcing doctrine? Why not abandon the philosophical search for the essential legal attributes of primary rules (Von Daniels) or of a union of primary and secondary rules (Hart)? Instead, why not treat the idea of institutionalized doctrine as a sufficient model of “the legal” for the purposes of research (Cotterrell 1995, 23–40), recognizing that this doctrine may take various forms and be institutionalized to varying degrees? Finally, why not recognize that agencies for making, interpreting, or enforcing law do not necessarily depend on rules? As Max Weber (1978, 215–16, 226–54) famously showed, the authoritative practice of such agencies can be based instead, in some circumstances, on tradition or charisma. One might not find agencies in existence fulfilling all the institutional tasks of identifying, creating, interpreting, and enforcing doctrine, but only some of these tasks. A useful model of law might then properly suggest that the legal character of transnational regulation can be a matter of degree, that some regulation may be more or less recognizable as law; more or less comparable as legal; more or less likely to attract authority and legitimacy as law. The issue would be how far doctrine exists and has been institutionalized in the senses discussed above.5 5. It has been suggested to me that the word “doctrine” in this context might seem to have too formal a connotation. However, I think that it usefully encompasses normative ideas that, even if they may be very unlike formal rules of state law, can be similarly expounded, organized, or interpreted. Transnational Law PRIVATE AND PUBLIC IN TRANSNATIONAL REGULATION Gralf-Peter Calliess and Peer Zumbansen’s book Rough Consensus and Running Code: A Theory of Transnational Private Law (2010) provides much material for applying this sketchy idea of law as institutionalized doctrine, though they do not explicitly adopt this idea. It might be asked immediately: Why “private” law? The answer is not at first sight obvious. One of their main themes is that public and private cannot realistically be separated, yet the designations public and private can still be of use. In their view, anything that can be recognized as law, even if developed essentially by “private” actors such as traders in transnational commercial networks (as lex mercatoria) or corporations and corporate groups (as transnationally operating norms of corporate social responsibility), will have important public aspects. The point seems to be that “public” here draws in governmental or governance aspects that go beyond a mere compromising of private interests in transnationally operating groups or networks. The “private” in transnational law suggests that the dynamo of norm production, development, interpretation, and enforcement is primarily located with civil society actors, rather than public authorities of the state or public international law. And the kinds of matters regulated are those that (if legally relevant at all) would be the concern of municipal private law if they were limited within the jurisdiction of the nation-state. The examples on which Calliess and Zumbansen focus are the regulation of corporations and their relations with civil society, regulation governing the practice of transnational merchant groups, governance frameworks for e-commerce between business and consumers, and transnational technical standard setting. More significant than legislation by state authorities or international agencies is often the working out of regulatory practices in social (especially economic) interaction within networks of individuals, corporations, organizations, and associations. Yet, echoing many other writers in this field, Calliess and Zumbansen emphasize that state authority is still important in many contexts. Corporate governance codes may gain official authorization and support from state legislation (as in Germany, discussed in some detail in the book) even if these remain voluntary in the sense of lacking official enforcement. Organizations, corporations, or associations set up to manage regimes of transnational private regulation may also be created, recognized, or guaranteed by public authority. Soft law mechanisms may be attached to hard law, or introduced as a prelude to the “hardening” of guidelines into state or international law. When the focus of attention ceases to be the settled jurisdictional reach of the nation-state, the public-private line becomes blurred. Common lawyers often tend to confront the undermining of the public-private dichotomy with pragmatic adjustments to their reasoning, but for continental European civil law scholars, used to a firmer conceptual association of law and state, perhaps the issue is more fundamental: “without the nation-state as an Archimedean point of reference, the public or private status of regulators becomes fundamentally ambiguous” (Calliess and Renner 2009, 265). Then issues of regulatory legitimacy may arise. Whatever these conceptual problems, a focus on transnational private law (TPL) is a way of making some provisional demarcations in an impossibly huge and diverse field of transnational regulation. As with almost all concepts in this area, the pragmatic 509 510 LAW & SOCIAL INQUIRY nature of a concept of TPL should be stressed. The question is merely whether it helps in mapping and modeling; whether it aids analysis in an area that for the moment has few reliable signposts and landmarks. The private emphasis makes it possible to separate off an area of transnational regulation from the familiar public or governmental regulation of municipal and international law. So TPL might be considered (temporarily) as in a different regulatory category from, for example, the international economic law created by the separate or collective acts of nation-states via municipal law or public international law. TPL could be thought of (again provisionally and pragmatically) as “bottom-up” law (developed in social interaction) rather than “top-down” (legislated) law (Calliess and Zumbansen 2010, 125). As soon as these terms, suggesting different ways of law making, are introduced, their problems are apparent. All law is voluntas (the expression of coercive authority) as well as ratio (negotiated, elaborated reason or principle). Most law is imposed by the regulators through force or pressure of some kind, as well as consented to or at least acquiesced in by those it regulates. Calliess and Zumbansen are well aware of all this but, in focusing on the “private” even if they do not really believe in it as a category, they are choosing to start analysis somewhere, rather than be paralyzed by conceptual indecision. For the moment, it seems, many questions about the specific contribution of municipal and international law to transnational regulation are to be left aside. In a rich and complex discussion that, among much else, provides very extensive reference to what is now a vast literature on transnational law, they illustrate ways in which transnational economic regulation emerges directly from social interaction (in merchant practice, corporate contexts, e-commerce, etc.), but always in a dialectic of regulatory power located in a variety of sources, official and unofficial. Different kinds of theoretical resources structure different parts of their account. The idea of a regulatory dialectic in which established regulatory structures frame and encourage relatively spontaneous processes of norm development implies the significance of theories of reflexive law that emphasize, for example, “how political governance and corporate self-regulation can be mutually reinforcing and optimising” (224). Economic theories of social norms are also noted for their helpful emphasis on nonstate mechanisms of regulation, but are heavily criticized for their general failure to link up with the extensive, long-established, wider sociolegal literature on norms. They are attacked also for simplistic, overgeneralized claims about the greater efficiency (according to what criteria?) of informal norms over formally institutionalized law (71–72), and about the widespread regulatory “incompetence” and inadequacy of courts, and (in the view of some critics) of contemporary state regulation as a whole (253–54). Soft law theory is seen as broadly allied with the authors’ approach, but insufficiently precise and rigorous (255–60). LAW IN THE TOOLBOX OF GOVERNANCE MECHANISMS More significant here is a detailed discussion of Oliver Williamson’s “economics of governance.” Williamson distinguishes contrasting kinds of “good order and workable arrangements” to regulate different conditions presented, for example, by “spot markets” (involving isolated transactions), long-term contracts (hybrids) providing for ongoing Transnational Law interaction, and “vertical” hierarchies of control and coordination appropriate to firms and their subsidiaries. Important variables are the relative frequency of transactions and the degree of standardization or specificity of assets involved in them. The risks and costs that vary with types of transactions and interactive relationships indicate the attractiveness and possibilities of different kinds of regulatory methods (Calliess and Zumbansen 2010, 113–18). Building on Williamson and other scholars, Calliess and Zumbansen identify twelve possible “generic governance mechanisms,” ranging from state law, courts, and legal sanctions through tripartite arbitration and bilateral negotiation to reliance on social, relational (especially contractual), or corporate norms, and hierarchical corporate control (118). What will be optimal or possible depends on the nature of transactions and relations between those engaged in them. But “this map of governance mechanisms is . . . a toolbox from which tailor-made solutions for the governance of cross-border commerce are formed” (113). Much of this will not fall within the scope of law if, as proposed earlier in this article, law is thought of as institutionalized doctrine. Again, public and private will be mixed in various combinations. Private ordering mechanisms “take place in the shadow of national law” (117, 118) but often state law is not what shapes and guarantees these mechanisms in practice, nor does it necessarily produce or even recognize the regulatory forms seen as binding by those subject to them. What appears is a very complex regulatory picture—a kaleidoscope of governance methods in which the nature of “the legal” remains to be clarified in transnational contexts. The contrast between Calliess and Zumbansen’s approach to this problem of clarification and the legal philosophical approach illustrated in Von Daniels’s reconstruction of Hart is striking. While the latter aims at something timeless and definitional, the former waver between treating it as a nonissue—“Whether transnational law . . . should be regarded as ‘law’ in the traditional sense can remain outside the present analysis” (20)—and recognizing its multifaceted importance as a practical matter (see also Michaels 2009, 250). A sociological approach could easily identify a range of phenomena to label as transnational law, but the issue of the normative significance of these phenomena has to be addressed. Several questions are interconnected. What, if anything, does law do that can be considered distinctive? Does it have a specific function? Does it have a specific kind of authority (claim to bind those it addresses) and legitimacy (claim to recognition as an established order or system)? Calliess and Zumbansen deal only unsystematically, somewhat inconclusively, and at times opaquely with these questions, approaching them from a number of viewpoints. Following Niklas Luhmann’s systems theory, they see law as reconstructing conflicts, alienating them from the social contexts in which they arise, and redefining them in terms of the binary legal/illegal code (44–45, 51), a process that in no way depends on state institutions and can be applied “into the last corners of societal organization” (77). But surely this admitted circularity (law is communication about what is legal) in no way solves the problem of what the term “law” should be taken to embrace or exclude,6 though 6. This is not a call for a definition of law but for a means (1) of recognizing (for juristic purposes) degrees of normative significance in various kinds of regulation (such as Calliess and Zumbansen’s generic governance mechanisms), and (2) of provisionally marking out (for sociological purposes) a research field of transnational law. The idea of institutionalized doctrine takes normative doctrine of some kind (rules, 511