Why a Theory of International Arbitration and Transnational Legality?

Abstract

Is it feasible and useful to articulate a general theory of transnational legality? In the bookTransnational Legality: Stateless Law and International Arbitration, Thomas Schultz replies yes and argues, furthermore, that we need such a theory. In this Critical Notice I suggest otherwise. The overarching theme of my critique is a plea for thinking seriously on why we still insist on building general theories of legality. As I try to show, by engagement with Schultz’s main claims, those general theories face unsurmountable conceptual and normative problems. Here are some questions. Which theory of society do we endorse? Are transnational society and law different in nature from their domestic and regional counterparts? Why should we adopt a concept of complex legal system rather than focusing on the looser “community”? Should a concept of transnational legality be as inclusive as possible or narrowly-tailored? In virtue of which normative principles are we to make such a decision? How can we decide which elements from our state tradition are we to preserve and which ones are we to let go? Why devising a concept of legal system that does not see the connections to other legal and normative orders? How do Fuller’s legality criteria meet the expectations we attach to law? And whose expectations are we speaking of? Why undergoing all these headaches to conclude that after all legality is a matter of clarity and we are not provided any tools on how to proceed empirically? All things considered why is this sort of enterprise worth it?