Transnational Force of Law research project was concluded in August 2021. Over a period of six years, Prof. Andreas Fischer-Lescano from the Law Faculty at Bremen University and his team have worked on a concept of a transnational force of law that would respond to both normative-theoretical questions as well as political issues that are posed by current developments in transnational law. It successfully developed a normative foundation of law that, instead of presuming the centrality of the nation state, considers the polycentric nature of transnational legal developments. This normative foundation does not seek to provide an external legitimating ground for a transnational legal order. Instead, it commits transnational legal regimes to reflect and counter their own complicity in upholding and institutionalizing political, economic and social violence.
With the transnational force of law, we propose a concept that is able to take into consideration the transformation of legal authority in the transnational sphere. Emerging transnational law undermines traditional concepts of law and legal theory. The synthesis of law with state authority within the constitutional state relies on the presupposition that the state, following a process of primary dispossession, deprived society of its ability to exert physical violence. However, the violence of law is more fundamental: it is broader, and subtler than the manifestations of state’s monopoly of violence. Law generates, distributes and limits political authority as well as economic powers. Law constitutes private and public authorities and that which is traditionally identified as “public authority” is also exercised by and within private organizational entities. Law and its enforcement apparatus are already deeply entangled in societal power relationships.
Against this background, the concept of the transnational force of law refers in a descriptive sense to the fact that treaties, laws and legal decisions “enter into force.” In German, this effect is called Rechtskraft. There are no legal phenomena that do not possess this Rechtskraft, this force of law. This notion is distinct from that of Rechtsgewalt, in the sense that Gewalt—as in Staatsgewalt or state power—is often used exclusively with reference to the authority of the state, whereas Kraft does not have this inherent connection to state power. Rather, the origin of Kraft is not specific and can refer to societal legal forces as well.
In its normative dimension, the concept of transnational force of law extends the demand for the normative foundation of legal force to all societal legal forces. It envisages that if transnational legal force is not limited to the state and its organs, its normative foundation also has to include all instances in which transnational force is at play. The concept therefore seeks the normative foundations of all forces of law and explores the possibility of law becoming a “non-violent force” (Derrida) within the transnational arena.
In order to identify the normative challenges of such a transnational force of law, the research project has surveyed three exemplary areas of transnational law in which new forms of rulemaking coincide with a broad societal discussion of their normative foundation: transnational financial markets (lex financiaria), internet governance (lex digitalis), agricultural and food markets (lex agraria) and transnational migration regimes (lex migratoria). For each of these areas, it provides guidance for the development of transnational regimes that considers all societal forces.
