Transnational Force of Law:
towards a normative theory of transnational law

Lex agraria

investigates the law of the global agricutlural economy and asks about the ways in which conflicts between a capitalist logic of profit maximization and democratic use of soil are negotiatied within law.

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Lex digitalis

examines the hybrid normative production in the arena of internet, with reference to the erosion of collective and individual rights against national security and private companies’ role.

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Lex financiaria

explores the law of transnational financial markets and its external effects using heterodox approaches to law and finance, critically evaluating the normative foundation of these markets.

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Transnational Force of Law is a five years research project, ongoing since September 2015 and led by Prof. Andreas Fischer-Lescano from the Law Faculty at Bremen University. In developing a concept of a transnational force of law, the project seeks to respond to both normative-theoretical questions as well as political issues that are posed by current developments in transnational law. The project aims at a normative foundation of law that, instead of relying on the nation state, considers the polycentric nature of transnational legal developments. In doing so, the project does not intend to provide a normative ground for ongoing developments. Instead, it is interested in developing a theoretical approach that takes into account and reflects upon the complicity of transnational legal regimes in upholding and institutionalizing political, economic and social violence.

With the transnational force of law, we seek to propose a concept that is able to take into consideration the transformation of legal authority in the transnational sphere. Emerging transnational law undermines traditional concepts of law and legal theory. The synthesis of law with state authority within the constitutional state relies on the presupposition that the state, following a process of primary dispossession, deprived society of its ability to exert physical violence. However, the violence of law is more fundamental: it is broader, and more subtle than the manifestations of state’s monopoly of violence. Law generates, distributes and limits political authority as well as economic powers. Law constitutes private and public authorities and that which is traditionally identified as “public authority” is also exercised by and within private organizational entities. Law and its enforcement apparatus are already deeply entangled in societal power relationships.

Against this background, the concept of the transnational force of law refers in a descriptive sense to the fact that treaties, laws and legal decisions “enter into force.” In German, this effect is called Rechtskraft. There are no legal phenomena that do not possess this Rechtskraft, this force of law. This notion is distinct from that of Rechtsgewalt, in the sense that Gewalt—as in Staatsgewalt or state power—is often used exclusively with reference to the authority of the state, whereas Kraft does not have this inherent connection to state power. Rather, the origin of Kraft is not specific and can refer to societal legal forces as well.

In its normative dimension, the concept of transnational force of law extends the demand for the normative foundation of legal force to all societal legal forces. It envisages that if transnational legal force is not limited to the state and its organs, its normative foundation also has to include all instances in which transnational force is at play. The concept therefore seeks the normative foundations of all forces of law and explores the possibility of law becoming a “non-violent force” (Derrida) within the transnational arena.

In order to identify the normative challenges of such a transnational force of law, the research project will survey three exemplary areas of transnational law in which new forms of rulemaking coincide with a broad societal discussion of their normative foundation: transnational financial markets (lex financiaria), internet governance (lex digitalis) and agricultural and food markets (lex agraria).

For work in progress and project-related writing, please check the publication section.