Emilia Korkea-aho and Panu Minkkinen
This short presentation was intended for a panel at a seminar on transnational law, 12-13 March 2020, organised by Professor Päivi Leino-Sandberg and the Erik Castrén Institute. Unfortunately the authors were unable to attend. It is therefore here for your information.
In a recent article, Natasha Affolder, the Canadian professor of transnational law, noted how transnational law has served as a kind of ‘holding pen’ for those who have felt restricted by the inability of existing legal vocabularies to accommodate new versions of law as it is observed, lived and practiced (Affolder 2019: 3). A major attraction of this ‘holding pen’ is its ability to turn away from states and other institutional entities to ‘actors’ (Affolder 2019: 8). Actors are, then, often defined with reference to what they are not, and, consequently, transnational law is mainly concerned with actors that are not states.
Despite this focus on actors that seems to evoke images of individuals buzzing around in networks, Affolder also noted how transnational law has neglected to include people in its analyses. Transnational legal scholarship is seemingly full of accounts about ‘actors’ (non-state, NGOs, corporations, substate, and so on), ‘agents’ and ‘experts’ all operating in a complex web of networks. But curiously by avoiding to address ‘people’, the use of actor-oriented operators also leads to a ‘conceptual flattening’ that redirects the inquiry somewhat ironically back into institutionalised accounts of transnational law ignoring the human origins of all network activities and other constellations where agents, actors and experts gather.
Affolder’s observations about the promise of transnational law as the ‘holding pen’ and her reservations about the ‘conceptual flatness’ of its actor-oriented vocabulary are both plausible. But we would like to take her argument a bit further. In several places, she refers to the ‘lived practice of law’, to ‘lived reality’, or to transnational law’s commitment to uncovering hidden law and the people behind it (Affolder 2019: 3, 4, 15). But she never really elaborates how we should go about doing this. There is surely a need to ‘bring human actors back on stage’, as she claims. But we need to know how. What does ‘bringing people on stage’ entail?
We would like to suggest that if we wish to take Affolder’s challenge seriously, a more ethnographic approach, perhaps anchored in a new conception of legal realism, is needed. Viewing transnational legal networks through an ethnographic lens would not only bring human actors back on stage, but it would also improve our understanding of institutions and their practices and helps us to see them in a more nuanced light.
Perhaps this captures the real uniqueness of ‘transnational law’ in general. Its normative substance can neither be inferred from the will of some transnational legislator nor from the practices of authoritative institutions, but from the routines and interactions of networked individuals.
Affolder, Natasha, ‘Transnational Environmental Law’s Missing People’, Transnational Environmental Law 8:3 (2019), pp. 463-488.