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Transnational Law's Legality

Authors: Evan Fox-Decent;

Transnational Law's Legality

Abstract

I argue that transnational law has a formal legal character. To do so, I build on socio-legal scholarship in this domain, but apply a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain the nature of authority evoked by transnational legal orders, as well as their legal features and constitution. This theory claims that the fiduciary character of an organization--i.e., its other-regarding purpose and adherence to certain procedural standards--is a necessary feature of its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory contests scholars who deny transnational law's formal legal character. Ultimately, I argue that despite the private constitution of some transnational law-making bodies, and their lack of express public authorization, by fulfilling a transnational fiduciary role they exercise authority which either is or closely resembles public authority. This, in turn, contributes to the legal character of the transnational norms these bodies generate. I use the International Organization for Standardization as an illustrative case study. The implications of this approach include acknowledging that law can exist beyond national or international state regulation, and a denial that coercion is an essential element of law.

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
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