Transnational Law, Functional Differentiation and Evolution

The label “transnational law” is deployed to address a pressing problem in international and domestic lives: in a different number of arenas, citizens have to abide by standards and rules which they have neither voted for, contributed to nor can easily change or dispute. To address the legitimacy gap of transnational legal practices academics have proposed two main strategies: (i) creation of global political institutions and principles; and, (ii) self-regulation. This article argues that the global constitutionalism/self-regulation set of alternatives is premised on too strong theoretical assumptions about the nature of world society and functional differentiation. Focusing primarily on a detailed analysis of Teubner’s societal constitutionalism and its systems theory’s assumptions, the article claims that the functional differentiation thesis at the core of autonomous transnational law is unconvincing and that there are resources at the domestic and regional (e.g. European Union) levels to address some of the challenges of transnational law.