IILJ Working Paper 2010/4

Transnational Legal Process and State Change: Opportunities and Constraints

Gregory Shaffer

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Although the terms transnational law and state transformations are increasingly used, we need clearer conceptual work and more empirical study. This Article sets forth and applies a socio- legal approach to the study of transnational legal processes and their effects within countries. First, the Article clarifies the concepts of transnational law, transnational legal process, transnational legal order, state change and transformation, and recursivity. Second, it provides a typology of five dimensions of state change that we can assess empirically — changes in substantive law and practice; broader shifts in the boundary between the state and the market; changes in the architecture and allocations of authority among state institutions; the shaping of markets for expertise and expertise’s role in governance; and shifts in accountability mechanisms and their normative frameworks. Third, it explains the factors that determine the variable effects of transnational legal processes and organizes these factors into three clusters, which are: the character of the transnational legal norm and order; the relation of the transnational legal order to the receiving state in terms of power and the place of intermediaries; and the affinity with demands of domestic elites and other constituencies in light of domestic political struggles and the extent of change at stake. Fourth, it introduces five empirical studies of transnational legal processes’ differential effects in six regulatory areas in Asia, Africa and South America that illustrate these points. Together they provide a guide of how to study the interaction of transnational and national legal processes, and the extent and limits of transnational legal processes’ effects.