The Constitutional Itch

Abstract

As transnational commercial lawyers have long known, border crossing, globe-spanning economic activities and business practices prompt legal responses that extend the public–private interplay and legal pluralism of the nation-state to – literally – unchartered territory. In the transnational space of exchange and trade of the modern age, law evolves through the interplay of “transnational lift-off and juridical touchdown,” constantly re-drawing the boundaries between private agency and public authority. As for lawyers, these contemplate whether or to what degree segments of this transnational regulatory regime – the mysterious and mesmerizing lex mercatoria – should properly be called law. And whereas from the perspective of sociology and geography the evolving landscape challenges conceptions of location and boundaries, for political science the focus must be on the element of authority. In other words, the urgent political question of transnational governance regards control, the emblem of power. As the sites and trajectories of transnational governance continue to span more and more regulatory areas, the combined question of who's in charge and to whose benefit has to move into the center of an interdisciplinary engagement. Law's history of interdisciplinarity situates it well for a productive contribution to this enterprise, which is one that must go beyond lip service to the need for thinking about law and globalization from an interdisciplinary perspective; crucially, it is the normative challenge of transnational governance that prompts a reflection on its stakes, interests, and aspirations. Law's engagement with the spatialization of transnational governance regimes under postnational conditions must address the normative challenge political philosophers and political scientists have long been addressing. The question raised in this chapter is how law and, more specifically, developments in private law theory address the normative challenges of transnational private regulatory governance. The larger issue behind this question concerns private law's contribution to a legal theory of global governance, with the contention – from a historical perspective – that private law has always played a central role in social regulation.

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