This chapter studies transnational legal orders (TLOs) in the context of trusts and demonstrates that such ordering is evident in the processes through which modern trust norms develop and flow across borders to become a substantive body of transnational and comparative trust law. By reference to innovations and transformations in trust embraced by offshore trust jurisdictions and the rise of the civil law trust in East Asia, this chapter argues that modern trust norms produce multiplicities of legal orders that transcend both offshore and onshore jurisdictions, as well as both common law and civil law jurisdictions.

This introduction presents the book’s framework for the study of the transnational legal ordering of fiduciary law. It notes the key conceptual tools of TLO theory (such as normative settlement and the recursivity of law) and explains how these tools bear upon analytic, normative, and sociolegal inquiries into transnational fiduciary law. The introduction discusses the role of framing problems in fiduciary terms in transnational legal ordering, the potential, but uneven, formation and institutionalization of fiduciary law transnationally, the recursive, transnational development and limits of fiduciary law over time, the conceptual frontiers of transnational fiduciary law, and the contributions of the book’s chapters. The conclusion presents the book’s principal findings regarding fiduciary law and its relation to theorizing transnational legal ordering.

This chapter explores the broader recognition and enforcement lessons that can be derived from transnational experience. In brief, I argue that although transnational recognition and enforcement approaches largely have their own distinct legal instrumentation and spheres of operation, they intersect in many significant respects, and can be said to be ‘transnationalised’. This is because they are drawn from a similar corpus of legal instrumentation and understanding, and developments in each approach have informed, and remain likely to inform, others.

In an era that is often characterized as one of a growing convergence of the laws governing criminal activities in different countries, the issue-area of cannabis policy undergoes processes of fragmentation and polarization. Some countries continue to criminalize all forms of medical and recreational uses of cannabis. Others have sought to “separate the market” for cannabis from that of other drugs by decriminalizing the possession of small amounts of marijuana, authorizing its use for medical purposes, and establishing administrative measures for taxing and regulating the commercial sale of the drug. This chapter explores the causes and consequences of the decline of the transnational legal order of cannabis prohibition. It shows how the erosion of the regulatory capacities of this transnational legal order reflects deep-seated political conflicts over the legitimacy of prohibition norms in this field. It analyzes the ways in which conflicting regulatory approaches become institutionalized as a consequence of the structural mismatch between the actors framing the meaning of cannabis prohibition norms at the international level and the actors implementing these norms in national and local contexts. Finally, the chapter shows how this transnational legal order has created path-dependent trajectories of legal change that continue to shape domestic drug policies in various countries.

The studies in this book examine the processes through which transnational criminal justice norms are being formed and institutionalized, migrate across jurisdictions, and shape the practices and attitudes of national and local actors. They assess the driving forces behind the emergence of new mechanisms of transnational legal ordering in diverse areas of criminal justice, analyze their limits and their effects, and evaluate their implications for our understanding of the nature of criminal law as a social and political institution. This introductory chapter sets the analytic framework for these inquiries. Drawing on the book’s case studies, we explore a number of theses for explaining why illicit activities and law enforcement practices become objects of transnational regulation. We consider how competition among and resistance within transnational legal orders shape and constrain their formation, institutionalization, and consequences. Finally, we highlight the book’s contribution to the broader project of developing a socio-legal theory of transnational legal ordering and to scholarly debates regarding the impact of globalization on criminal justice policies.

To date, “transnational criminal law” has been the dominant paradigm for explaining and mapping rules on corruption in the international legal literature. This Chapter details the limits of transnational criminal conceptions of “anticorruption” through a study of nascent changes to Australian corporate foreign bribery law. Drawing on primary and secondary documentary sources, it shows that the proposed (but for now lapsed) reforms are only partially transnational, as that term is understood in “TCL” theory. Likewise, multilateral suppression conventions and related soft laws were but one impetus for the suggested amendments. Rather, as the transnational legal ordering literature suggests, a recursive process appears to have been at work between international organizations and local legislators, as well as transnational non-state actors. This process was marked, it seems, by moments of borrowing from the US and UK. However, it was also punctuated by themes of modernization, efficiency, and reputation. In addition, if settled, the amendments would result, not just in changes to national criminal law, but also the extension of “new” – and controversial – techniques of governance.

This chapter examines the criminalization of migration through the lens of transnational legal orders (TLOs). By doing so, it seeks to explain dramatic episodes such as the Diciotti refugee incident in Italy, but also provide socio-legal analysis for far-reaching practices such as immigration detention, removal, and refusal of entry, all of which depend on the development of a formalizing legal order and specific regulation such as the EU Returns Directive that transcends national boundaries. It argues that affluent democratic societies of the Global North are in the middle of a major transformation of governance while transnational legal orders are at the center of it.

The chapter examines the evolution over the past twenty years of a complex transnational legal order or TLO around the 2000 Palermo Protocol on Trafficking. It elaborates on why despite the Protocol’s high rates of ratification, the anti-trafficking TLO is poorly institutionalized attributing it to the various phases of the TLO’s development, the discursive and ideological issues that are at its core, the factors for its institutionalization relating to concordance and issue alignment, and the varied regulatory fields that it has implicated. Paradoxically however, the criminal justice approach to trafficking inherent in the Palermo Protocol remains hegemonic. This hegemony however cannot be simply attributed to the unidirectional influence and dissemination of transnational (and Western) ideas about how to address the problem. Rather, using the example of the India, the chapter shows how national legal contexts are crucial to when and how the logic of criminalization is pursued. The recursive nature of the trafficking TLO is therefore significant and helps explain the normative basis for the authority of transnational law.

In Jessup’s 1956 Storrs Lecture he defined transnational law as “all law which regulates actions or events that transcend national frontiers,” which includes public international law, private international law, and “other rules which do not wholly fit into such standard categories.” Considerable recent scholarship on transnational law has focused on that residual category of “other rules” and their “private” character. There has, however, been a revolution in international law itself since 1956, reflected in a proliferation of international institutions, international courts, treaties, and so-called “soft law” technologies of governance. This chapter assesses the role of international law in the creation of what can be viewed as “transnational legal orders” that penetrate and imbue state law, shape social identity, and inform public and private legal practice. International law, this chapter contends, is even a more important shaper of the transnational than in Jessup’s time, and, in turn is shaped by it.