Studying Transnational Legal Orders in Practice: Process, Ideology, Infrastructure
Sally E. Merry
Abstract
Transnational legal orders are challenging to study as they work in practice. They are constituted by myriad state, international, and non-governmental organizations and actors who often have shifting and informal as well as formal relationships with each other. Some parts are organized as institutions but others parts are often made up of diffuse and even inchoate social networks. Moreover, TLOs develop over time, gradually becoming solidified and institutionalized but still likely to keep evolving. Informal social practices gradually become bureaucratic routines, demands for more data and activity generate new bureaucratic offices, and acceptance by states and publics may increase over time. At the same time, TLOs may rise and fall as the need for this kind of ordering disappears, is replaced by another system, or is seen as ineffectual. Some of the current critique of the human rights system is in this vein, suggesting that, despite the extensive institutionalization of the system in UN agencies, treaties, and NGOs along with extensive informal networks of activists, it is failing to achieve its goals. Alternative global justice ideologies are emerging, some based on religion and some on ethnic nationalism. Finally, TLOs typically have a complicated internal organization in which various parts exercise different kinds and degrees of power so that understanding how they work requires following the processes by which they function and the power base of each part.
Clearly, the first step in studying TLOs is identifying them, since this is a model used to make sense of different kinds of transnational organizations addressing distinct problems in various ways. It is clear that they develop over time and gradually coalesce into what can be called a TLO, but how that happens is less clear. And given the multi-sited, multi-organizational and multi-actor basis of most TLOs, this is hard to know. In this commentary, I develop a practice approach to understanding TLOs. This means focusing on how they develop over time, what makes them work or not, what are the institutional systems that undergird those that last, or are created to undergird those that last. This is the next step beyond identifying the phenomenon and locating its existence in many sites. And of course it is not easy to do, requiring a longitudinal or historical approach as well as an ethnographic examination of a TLO in practice, attending to its processes, culture, ideology, routines, bureaucracies, and infrastructure.