I shall use, instead of ‘international law’, the term ‘transnational law’ to include all law which regulates actions or events that transcend national frontiers.  Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.

Philip Jessup, Transnational Law

136 (1956)

A. The Nature of the Exercise

With this succinct and oft-quoted passage from his Storrs Lectures on Jurisprudence delivered just over a half-century ago at Yale Law School, Jessup posited “transnational law” as an expansive umbrella category for all “law” involved in regulation – what is called, with increasing frequency, the ‘governance’ – of the transnational (“actions or events that transcend national frontiers” whether involving state or non-state actors). While there need be nothing iconic about his formulation, there is a certain attractiveness in treating this very brief passage as a semantic jumping-off point for narrating several senses in which “transnational law” may be said to ‘exist’ (or not) in the contemporary world. No etymological pedigree for the term “transnational law” is hereby claimed, but whether Jessup coined the term or not is less important than the fact that his slim volume has been a common starting point for those seeking to get a handle on the use of this term.

The purpose of this article is to identify three conceptions of transnational law, all of which have a certain integrity depending on one’s premises about the nature and institutional operation of law.  My method in discerning and then presenting these three conceptions is fluid, to say the least.   Specifically, my discussion will blur the line between two usages, what we may call a practitioner’s usage and a theoretician’s usage.  On the one side, there are various uses of “transnational law” extant in normative discourses that invoke, however inchoately and impressionistically, “transnational” legal rules, legal principles, legal standards, and even legal systems as being ‘applicable’ or otherwise relevant in a given factual context.  On the other side, we may discern something resembling...