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Chapter 1 - Introduction

Published online by Cambridge University Press:  12 December 2017

Andreas Fischer-Lescano
Affiliation:
Professor of Public Law, European Law and International Law at the University of Bremen
Kolja Möller
Affiliation:
Post-Doctorate at the Cluster of Excellence “Normative Orders”, University of Frankfurt
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Summary

The transnationalisation of law and of social rights challenges our understanding of law, society and the state. Facing the recent social and economic crisis in world society, this volume scrutinises both the potentials and the boundaries of de-coupling the notion of “social rights” from the nation-state and of transferring it to the transnational sphere. “Transnationalisation” is an encompassing process which affects national, supranational, international and global law. The seminal works by Boaventura de Sousa Santos, Gunther Teubner, Sally Falk Moore and others provide profound insights into the emerging global legal pluralism and the inter-legality of fragmented clusters of law. The best example for this stems directly from the juridical sphere: courts at different levels increasingly engage in a dialogue across borders. Or think of recent conflicts about austerity programmes and investment protection. Th e countries affected oft en invoke international law – such as the UN Covenant on Economic, Social and Cultural Rights or the European Social Charter – when they resist the attempts of multinational companies or creditors to implement measures which serve their interests. In this situation, we need to establish a more process-oriented notion of the transnational in order to grasp the multiple and oft en transversal chains of legal communication which cannot be slavishly tied to a distinct level of juridical and political decision-making.

However, there is another reason for drawing on the notion of transnationalisation. The legal dynamics that we are facing are part of a historical shift to world society. The evolution of social communication does not stop at national borders. Social systems, such as the economy, the sciences and politics, all tend to transcend territorial boundaries. The economic system, in particular, with its cognitive expectation structure and strong pressures to adapt, plays the role of a forerunner. Echoing this line of thought, we contend that it is absolutely necessary to scrutinise how legal communication interacts with other social systems and – most notably – with the colonising tendencies of the economic system and the struggles that try to re-embed it. Accordingly, we follow an agenda that integrates legal, sociological and political perspectives. Transnational law may not be a matter of legal discourse alone, but – as the sociological backgrounding of the contributions to the volume show – amounts to an interdisciplinary research field.

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Publisher: Intersentia
Print publication year: 2016

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