International organisations, networks, transnational enterprises: Globalisation and transnationalisation processes have either created or deeply transformed the legal nature of these collective actors. These are now the main institutions of an extremely complex, multi-layered, and fragmented system of global governance. They are “native” citizens of a body of global law which is erratically but continuously produced. Thereby, the fiction that States are ultimately the only power-holders and law-makers – deeply rooted in the conceptual structures of legal modernity – has become untenable.
Public and international law and the relevant theory struggle to accommodate the role and power of such institutions within their own conceptual framework, still inherited from a Westphalian system of international relations. That framework has both analytical and normative shortcomings, because it hinders the legal understanding of those three kinds of institution and, relatedly, the possibilities to put or even think of legal constraints on the power they exercise. This shortcoming weakens the normative thrust of modern constitutionalism, as it has emerged in the last four centuries.
Many strands of public and international legal theory have long addressed this problem, but few of them have explicitly brought these three types of institutions under a single, comprehensive conceptual umbrella. Moreover, the available theories differ in ideological, normative, and methodological terms, thus generating within international theoretical discourses an inner fragmentation that ultimately jeopardizes their common goals. Finally, few authors have employed the theoretical toolkit provided by legal institutionalist thinking. That line of thought dates back to the works of French, Italian, and Scottish authors, but has largely been forgotten in international institutional law.
Against this background, the research project “Transnational Institutionalism” aims to pull the strings of the theoretical and conceptual fragments together. In analytical terms, it investigates the three main collective actors/institutions of legal globalisation (international organisations, networks, transnational enterprises) as part of one and the same factual developments. The three groups of actors are therefore addressed with one single legal-theoretical approach. This should ultimately contribute – analytically – to their better understanding/framing; and – normatively – to the establishment of legal constraints better suited to their nature.
Relatedly, the project aims to de-fragment international legal discourses by individuating and strategically exploiting commonalities among different strands such as global administrative law, “international public authority”, global constitutionalism, and societal constitutionalism. Thereby, transnational institutionalism aspires to shape the contours of a theoretical meta-discourse, which would ultimately facilitate cross-fertilization and mutual strengthening of among different conceptual frameworks.