Monday, January 17, 2022
Immigration Article of the Day: Transnational Legal Process: An Evolving Theory and Methodology by Regina Jefferies
Regina Jefferies, Transnational Legal Process: An Evolving Theory and Methodology, 46 Brook. J. Int'l L. 311 (2021).
Harold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of TLP as orienting points to draw the theory into present debates on legal theory and methodology, before identifying Pierre Bourdieu’s concepts of “habitus” and “bureaucratic field”, as well as the empirical method of social network analysis, as providing fertile ground for future empirical and interdisciplinary work aimed at developing TLP as legal theory and methodology. This work fills a gap in the literature by synthesizing scholarship in disparate sub-fields of legal study that engage with TLP, but often do not speak to one another, and contributes to a more systematic approach to theory testing.