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Constitutional Law

Constitutional Advice and Transnational Legal Order

Profile image of Tom GinsburgTom Ginsburg

2019, Constitution-Making and Transnational Legal Order

https://doi.org/10.1017/9781108561792.002
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Abstract

Author(s): Ginsburg, Tom | Abstract: This article surveys the history and practice of providing constitutional advice. It first examines antecedents, then looks at the contemporary political economy of the process, drawing on the transnational legal order (TLO) framework to evaluate whether or not it can be characterized as a TLO. The answer is a partial yes. We focus on one feature of the modern situation, the presence of corporate actors—including the United Nations, NGOs, and international organizations—in an increasingly dense social field. This development has laid bare tensions and competition among actors, moving the field toward a nascent TLO that is nevertheless unlikely to fully consolidate or institutionalize. We conclude that the field evidences aspects of a transnational legal order but also serves as an arena in which other TLOs contest over outcomes.

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  92. Id.

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Our theoretical framework provides a way to assess empirically how legal norms interact at the transnational, national, and local levels in terms of their construction, conveyance, and practice. For us, the term “transnational” thus does not suggest the disappearance of the state, the withdrawal of the state as a major actor, or processes autonomous of state law, as contended by others. Rather, the term “transnational” has three core attributes. First, it highlights that states (through state officials) are just one among many actors engaged in transnational legal ordering. Second, it points to the ways transnational legal ordering transcends and often transforms states through their participation in transnational legal processes. Third, it underscores that one needs to assess the interaction of state and nonstate actors at different levels of social organization, including international organizations and transnational networks, national institutions, and local practice, to understa...

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The Political Economy of the Production of Customary International Law: The Role of Non-Governmental Organizations in U.S. Courts
Donald J. Kochan

2012

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Related topics

  • Constitutional Law
  • Political Economy
  • International Law
  • Political Science
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