Introduction

The globalization of the rule of law, particularly its Western-centric content – frequently results in a split in the international debate on its implementation and promotion. This post reflects on the universalism of the rule of law and proposes a new approach to its effective internationalization. The process it suggests is the transnational legal framework, which, unlike strategies for export, is more effective in improving rules of law globally. This article provides the basics of the “transnational rule of laws” concept and the proposed framework before applying it to the Chinese direction.

What is the Rule of Law?

The initial part needed, like it is for all writings based on theories of the rule of law, involves defining the rules of law (for some innovative ideas, look at this article, here and here). As a highly contested concept, there isn’t a definitive definition of its significance. In the current Western jurisprudence, ideas can range from substantive to formal conceptions of the law of the land – from thin to thick, as it’s generally referred to. The advocates of a standard definition that includes Dicey and Fuller concentrate on controlling authority via legislative features such as clarity, generality, and coherence. Advocates of a substantive form like Dworkin are not opposed to these characteristics, but they believe that legal principles must be able to include consideration of individual rights.

Not only is its content being debated, but the validity of the concept is also being questioned.

It is more appropriate to view the concept in terms of ‘Schrodinger’s’ law that says: “We are unable to determine an ‘thick’ or “thin meaning of the concept and, instead of advocating either and focusing our time debunking either, we must acknowledge the truth of both and adhere to this principle – by adopting the relativist view.

What is the ‘Transnational’ Rule of Law?

The law of the land has different meanings when it is applied in both a national and international context. In the former case, it regulates the behavior of a centralized state about its citizens, whereas the latter is thought of as a horizontal law that applies to conditions. In this sense, each sphere is self-contained and does not inflict harm or influence the other. But, an additional dimension exists, or more of an overlap between these two dimensions. Nollkaemper refers to the internationalized rule of legality, which he defines as the normative reciprocal influence between the international and domestic spheres. While embracing the notion that an overlap is an additional dimension, it’s more sensible to define the term “transnational rule of law. The time derived from Koh’s interpretation of the term global law refers to a different element of this overlap, precisely, the direct migration of norms and standards between legal and international legal. Following Koh’s definition, transnational law can be described as the legal rule that is transnational can be characterized as the uploading or downloading of power of law norms between the local legal order and international legal.

One of the difficulties of transnational law is that its foundation is 100% based on Western jurisprudence that is later transferred to non-western jurisdictions. The reliance on Western standards results in two issues. First, it ignores the fundamental concepts of non-western law. Due to the universalist view commonly used in the field of scholarship (see, for instance, here and here), it is customary to judge different legal systems regarding their ties to Western ideas. Although Western formulations regarding the law of the land have indeed been successfully adapted into states that are not Western (an example of a transplantation process that is often a result of the student movement and donor programs) however, it is also confirmed that this is a denial of the truth of these legal systems. There isn’t a single norm in non-western countries that can be compared to Western standards, and looking at these concepts through this lens detracts from the effectiveness of transfer of these norms into the international arena and domestic bars that are a reflection of Western standards are uploaded, Models that are perceived as foreign are not taken into consideration. This creates a second problem: the impeded uploading process renders the international law of the rule of law primarily redundant and, therefore, unpopular in countries whose populations are most benefited by the strengthening of the powers of law, like China.

Recalling Nollkaemper, He proposes that exchanging information between international and domestic legal systems can increase the effectiveness of the rule of law advocacy more efficiently. Mainly, a local legal system’s openness to international law measures how effective the promotion could be. Nollkaemper is correct on this point. However, instead of insisting on a practical normative download (which is, in turn, an emphasis on exports), the focus should be on eliminating obstacles to the normative upload. This study proposes the following framework:

To make it easier to upload norms, an increased acceptance of legal systems that are not Western is necessary. Law and scholarship should move away from focusing on similarity – and thus, depart from universalism and look at the problem in a normative relativist manner. As there isn’t a definitive answer to formal versus substantive rules formulas for law, is there a correct answer between Western and non-western norms? The Goliath’s head here is the absence of diversity in research, and exposure is the solution. The growing demand for Third World Approaches to International Law and the active reduction of the role of gatekeepers in academic research are significant factors that could aid in this transition, as they contribute to the increased inclusion of non-western voices and concepts.