This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation state. Within the nation-state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators' sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today's quest for a just, democratic and equitable global legal order, for example in the debate about 'fragmentation of international law' or 'global administrative law'. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the 'end of law' in an era of globalisation in a different light. Rather than describing the advent of globalisation as an end-point of legal development, the transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of 'world society'. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further consequence in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of 'social norms' and 'spaces' of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structured global legal order. This article's proposed concept of 'transnational legal pluralism' [TLP] goes beyond Philip Jessup's 1956 idea of 'transnational law', through which he sought to both...

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This paper analyzes the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time when the state is seeking to reassert, reformulate and reconceptualize its regulatory competence, both domestically and transnationally.While the earlier turn to alternative regulation modes, conceptualized under the heading of "legal pluralism," "responsive law," or "reflexive law" in the 1970s and 1980s, had aimed at a more socially responsive, contextualized, and ultimately learning mode of legal intervention, the contemporary revival of functionalist jurisprudence and its reliance on "social norms" embraces a limitation model of legal regulation. After revisiting the Legal Realist critique of Formalism and the formulation of functionalist regulation as a progressive agenda, this paper reflects on both the American and German justifications of market regulation and the Welfare State in order to trace the different evolution towards 'responsive law' and legal pluralism in the U.S. and 'post-interventionist' and 'reflexive' law in Germany. This comparison allows for an identification of the emerging transnational qualities of legal normativity in the face of a declining welfare state paradigm, which -at the beginning of the 21st century -appears to provide the stage for turning the progressive gains of the former era into a set of market-oriented justifications of private autonomy and de-regulation.Sfb 597 "Staatlichkeit im Wandel" -"Transformations of the State" (WP 82)