National Sovereignty and the Constitution of Transnational Law: A Sociological Approach to a Classical Antinomy

Abstract

This article outlines a concept of transnational law that is designed to question, or at least to sit alongside, the increasingly established categorisation of transnational law as law that emerges beyond the state, resulting from the fragmentation of the sovereign organs of national states. It argues that the construction of a hybrid transnational legal domain, far from being specific to globalised, postnational society, is in many cases a precondition for the formation of strong national statehood, and the inner-societal exercise of state sovereignty has typically depended on the existence of a bedrock of transnational law, fusing national and international law in autonomous fashion, in national societies. On this basis, the article employs a series of historical and contemporary examples to show that transnational law and national state building are closely interwoven, and it advances a historical-sociological methodology to support these claims.

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