Transnational Common Laws

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Fordham International Law Journal, Vol: 29, Issue: 3, Page: 457

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Glenn, H. Patrick
FLASH: The Fordham Law Archive of Scholarship and History
International Law; Law
paper description
Today, the notion of transnational, or sometimes transsystemic, law has progressed well beyond Jessup's concept. It now includes the international law that Jessup generally dealt with – the (often) national law regulating actions or events that transcend national frontiers – but also now clearly extends to law that is transnational in origin, as opposed to application. The new transnational law can thus be applied to purely internal, and not only international, cases, and its transnational character is derived from the extra-national character of its source or sources. It is often seen in the form of “general principles of law,” which transcend the law of any nation-state or regional or international organization. It is law which is not formal in character, not formally endorsed by a state prior to its application within the state, not systemic or positive in character. It represents a major theoretical and highly practical challenge to concepts of law that have prevailed for the last two centuries. What theoretical and historical justification can be offered for it? In attempting a response to this large question, an initial field of inquiry must relate to the justifications offered for the exclusivity of state law. If exclusive state law is of only one or two centuries' duration, what preceded it? Are there notions of law which have been overlooked or pushed aside in the process of state construction which are once again relevant in a period of state decline? This article answers these questions.