Justice Beyond the State: Transnationalism and Law

Justice Beyond the State: Transnationalism and Law

Faculty of Law, University of Windsor – September 20-21, 2013

In 1956, Philip C. Jessup described transnational law as including public international law, private international law and any law that “regulates actions or events that transcend national frontiers.”[1] The description is very wide, covering disputes that could be addressed either in domestic courts or through international mechanisms and problems that appear to call for rules from a combination of sources that are neither solely domestic nor international.

It is now a commonplace that legal issues may present ties to more than one national state. Some matters, such as environmental issues, are inherently cross-border in scope. In addition, it is well-understood that private parties are significantly involved in global relations. Individuals, enterprises, groups and organizations have diverse global connections that are economic, cultural, spiritual, social and familial. Domestic and international policies will reflect and respond to these connections.

Law that transcends national frontiers moves beyond territorial definitions of sovereignty. If legitimacy depends on the presence of elected representatives who make law in the public interest, transnational law presents challenges to accountability. Law beyond the state may appear to be outside the control of domestic politics. When law is judged for its justice and fairness, it can be difficult to identify the link to the relevant public.

When facts transcend national boundaries, so too does regulation, in its effect and in its reason for being. What does extraterritoriality mean in these times? Must law and courts become cosmopolitan and take into account the interests of others? What is the ongoing role for state sovereignty in a transnational world?

Law that applies across state boundaries reaches non-citizens, as well as citizens. Personal status as a basis for jurisdiction has a solid history in public international law. What international rights and responsibilities should private parties carry with them as they cross national boundaries?

A view that looks beyond the state moves past positive law to consider sources of law in legal pluralism and legal traditions, including the common law, civil law and Indigenous law, as well as normativity arising from soft law, custom and non-legal sources. The transnational focus then considers theories of the relationship between law and society and the ways in which laws are influenced by comparisons to rules applying in other states and other contexts.

A major part of current transnational legal thinking is the significant presence of private international law, in response to the geographic diversity of ordinary life. In private international law, the foreign has long been part of domestic legal systems, both through enforcement of foreign judgments and through approaches to the choice of substantive law in all areas of domestic private law. The past few decades have seen much ferment and change on these topics, within Canada and elsewhere.

A transnational perspective poses questions of accountability, inclusiveness, the definition of law and its function in the public interest. If public policy does not end at national borders, is it located in a place at all? Throughout, the inquiry involves issues of justice and participation.