Litigation and Conflict: Forgotten processes in transnational lawmaking?

Scholarship in transnational law and governance has developed helpful frameworks for analyzing the role of various actors and institutions which transcend or defy the distinction between national and international levels and private or public spheres (K. W. Abbott & Snidal, 2009; Jessup, 1956; Zumbansen, 2011). It has developed in response to the methodological limitations of legal analysis in purely domestic or international contexts, emphasizing the cross-jurisdictional dynamics of legal systems as well as the role of private actors – in addition to states – in formal and informal modes of lawmaking (Calliess & Zumbansen, 2010; Cutler, 2003; Teubner, 2002). However, the field has largely overlooked the role of litigation, focusing instead on new social movements, the political (rather than legal) work of transnational civil society actors, and technical and expertise-led governance actors (Block-Lieb & Halliday, 2017; Halliday & Shaffer, 2015). The world of litigation has been wrongly assumed to be limited to legal analysis within the nation-state framework. Yet, Slaughter’s account of transnational judicial communications and networks, first published nearly 30 years ago, already identified courts, and hence litigation, as a transnational legal process of primary importance. This paper reviews the seminal works of general theory on transnational law and governance, with a particular focus on their accounts of the lawmaking processes and actors, in hopes of identifying why litigation has had such limited attention in their accounts. How do they describe the process of lawmaking in the absence of litigation? What and who are involved in lawmaking processes according to these accounts? And how do they understand the role of conflict in these processes, if litigation is largely excluded? Through reviewing these seminal accounts of transnational lawmaking, this paper identifies problematic lacunae about the position of conflict, and thus conflict resolution vis-à-vis litigation.