Transboundary Legal Studies

During the last decades, a large set of domestic, European and global instruments have been developed that address various specific transnational problems both old and new (such as protection of human rights, pollution and climate change, inequalities in access to health provisions) as well as problems posed by new technologies. Different legal regimes have emerged, each with its own particular set of actors, institutions and relevant standards. Yet despite the difference between these regimes, they are not self-contained, but converse with and affect each other. Such legal regimes cannot be analyzed either in isolation or studied in the same way as domestic legal systems. They share a number of characteristics which call for a different approach.

Research question

The research programme Transboundary Legal Studies focuses on the following research question:

How do different regimes, areas and actors of international, European and domestic law function both within their own confines/boundaries and beyond them when interacting with each other?

Key areas

This research programme explores the aforementioned research question in these areas:

Public International Law
European Law
International Dispute Settlement
International & European Human Rights
Global Health Law
Law and Technology
International & European Environmental Law
International Criminal Law
European Competition Law
Professional Ethics
Law & Economics

Required change in approach

There are three characteristics within legal regimes that call for a different approach:

One-dimensionality
Multiplicity
Dependency on non-legal expertise

One-dimensionality

Many regimes are especially designed to address a specific sector and/or to realize a set of particular policy goals. Since each of them is geared to the attainment of a specific problem or goal, they are not necessarily designed to facilitate cooperation between different actors or to strike a balance with other competing goals.

Multiplicity

The policy-goals that are at the centre of a legal regime, are not necessarily identical to the practical problems that need to be regulated. This means that specific problems are often covered by more than one regime at the same time. These different regimes may partly cover the same problems, aspire to the same ideals and may therefore complement each other. However, there is often also a competition between regimes, each with their own standards as well as their own set of actors: a plurality of formal and informal bodies that make, monitor and enforce laws and regulations.

Dependency on non-legal expertise

The orientation towards specific aims and problems implies the need for non-legal expert knowledge. In order to regulate new technologies or to develop legal measures to deal with environmental or health risks, or address current challenges to human rights, interaction and cooperation between legal experts and technical or scientific experts is vital.

Developments

In view of these distinctive features, such regulatory regimes can only be understood and researched by questioning as well as transgressing various boundaries that seem to have lost their self-evidence.

In the first place, the emergence of sectorial regimes cross-cuts the familiar boundaries between domestic, European and international law. But even within these spheres, the regimes bundled within are also not in complete isolation, but are in continuous dialogue with and cross-fertilize each other.

Furthermore, the boundary between legal and non-legal concepts tends to be blurred. The meaning of core concepts is no longer solely defined by a set of legal conditions, but is also coloured by the meanings these concepts have acquired in non-legal contexts.

Additionally, the input of actors and institutions which are not legally competent to draft, monitor and enforce rules also tends to blur the demarcation criteria of legal validity. Independent agencies or professional organisations may be the source of much regulation but are often not legally mandated to legislate. How should we regard their rule-products? As legally valid, or as not valid but nevertheless legally binding?

Finally, the familiar boundaries between legislation, adjudication and execution of the law, tend to be blurred where alternative forms of rulemaking and new forms of adjudication emerge.

The new approach

The complexity of the resulting regulatory landscape calls for an approach in which these shifting boundaries are not regarded as a deplorable side-affair at the fringes of the legal system or as a marginal concern to doctrinal legal research. On the contrary, they need to be addressed, thematised and researched as distinctive features of how societal problems are nowadays regulated. In order to adequately research this terrain, it is important that the legal researcher has acquired some of this non-legal expertise as well, and is able to translate non-legal concepts into legal concepts (and the other way round).

Recurring questions are as follows:

Should this particular problem be regulated by law?
What is `law’ in this context? What is its surplus-value?
Is there any line to be drawn between `hard law’ and `soft law’ and why should it be important to draw such a line?
What is the role of traditional legal concepts that characterize the legal relationship between the parties concerned and its legal effects in an electronic environment?
What is the significance of sub-domains (such as intellectual property rights)?

Ambitions

Theoretically speaking, the programme aims at bringing together studies in different phenomena (environment, human rights, technology, health, competition) which, although charting different terrains, also share common features.

In the second place, it aims to bring together explorative and reflective contributions: what lessons can we learn from the way the various legal regimes develop? Should we regard these developments as unwanted fragmentation or as desirable diversification? What are the effects on the traditional legal values of coherence, stability and unity of law? And in what way are ideals of parliamentary/representative democracy and the Rule of Law affected by these developments?

Relevant links

Contacts

Prof. dr. P. C. (Pauline) Westerman

Prof. dr. M. M. T. A. (Marcel) Brus

Prof. dr. G.P. (Jeanne) Mifsud Bonnici

Prof. mr. dr. H. H. B. (Hans) Vedder

Prof. mr. dr. B.C.A. (Brigit) Toebes

Prof. mr. dr. A.R. (Anne Ruth) Mackor

Prof. dr. P. (Panos) Merkouris

Prof. dr. A.L. (Alette) Smeulers

Prof. S.E. (Stefan) Weishaar

Last modified:

04 March 2024 4.28 p.m.