Ralf Michaels, Does Brexit Spell the Death of Transnational Law? (July 1, 2016). German Law Journal (Brexit Suppl.), Vol. 17, p.51; Duke Law School Public Law & Legal Theory Series Forthcoming. Available at SSRN
The British leave vote in the referendum on EU membership has important implications for how we think about law. The vote must be viewed as a manifestation of a globalized nationalism that we find in many EU member states and many other countries. As such, it is also a challenge of the idea of transnational law, forcefully introduced in Jessup’s book on Transnational law 60 years ago. In this paper, I suggest that the hope to return from transnational law to the nation state of the 19th century is nostalgic and futile. However, I argue that transnational law has its own nostalgia, carried over from the postwar period and no longer appropriate for our times. Transnational law, I argue, has become an elitist project. In order to remain fruitful, it must take serious the pleas of those who feel left out from it.