Lex Sportiva: A Playground for Transnational Law

• DOI: http://doi.org/10.1111/eulj.12067
• Date: 01 November 2013
• Published date: 01 November 2013

Lex Sportiva: A Playground for

Transnational Law

Antoine Duval*

Abstract: This article tackles the emergence of transnational law under the pressure of

globalisation. It argues that lex sportiva, the law of international sport, is a fruitful

research object in order to address three key questions raised by transnational law: What

is transnational law? Is transnational law legitimate? How do we deal with transnational

legal pluralism? We will address each of these questions separately, complementing each

time a general analysis with empirical examples drawn from the field of lex sportiva.In

our view, there is a pressing need for empirical work and pragmatic description of legal

phenomena reaching beyond the state. Hence, we suggest lex sportiva as a suitable

playground for transnational lawyers.

I Introduction

What is transnational law?1This is a recurring question, maybe a misleading one. Many

types of law can be, in one form or another, transnational—go beyond the national. A

single definition might therefore be out of touch. What is then the added value of

focusing on transnational law? ‘Breaking frames,’2as Gunter Teubner would put it.

National law and international law are too rigid to capture the fluid and complex legal

reality of the 21st century. The international sports law—or lex sportiva3—exemplifies

this shift towards a ‘transnationalisation’ of legal sources and their interactions. The

success of the transnational law scholarship4is driven by the same social reality that

drives scholarship published under theheading of law andglobalisation,5global

* PhD Researcher, European University Institute (Florence). I am grateful to Tanja Ehnert, Alexis

Galan Avila, Daniela Jaros, Lukas Knott and Marco Rizzi for their comments and corrections. I want

to thank the organisers, especially Prof. Snyder, and the participants of the WISH workshop on ‘The

Future of Transnational Law’ in Shenzhen where this paper was first presented. Needless to say, all

mistakes are mine. Comments are welcome at antoine.duval@eui.eu.

1R. Cotterell, ‘What is Transnational Law?’ (2012) 2 Law & Social Inquiry 37.

2G. Teubner, ‘Breaking Frames: Economic Globalisation and the Emergence of Lex Mercatoria’, (2002)

5European Journal of Social Theory 199.

3The best account of lex sportiva is found in F. Latty, Lex sportiva: Recherche sur le droit transnational

(Martinus Nijhoff Publishers, 2007).

4P. Zumbansen, ‘Transnational Law, Evolving’, in J. Smits (ed.), Elgar Encyclopedia of Comparative Law

(Edward Elgar, 2nd edn, 2012), at 898.

5P.S. Berman, ‘From International Law to Law and Globalization’, (2005) 43 Columbia Journal of

Transnational Law 485; C.-A. Morand (ed.), Le droit saisi par la mondialisation (Bruylant, 2001).

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European Law Journal, Vol. 19, No. 6, November 2013, pp. 822–842.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

law,6global legal pluralism,7global administrative law,8global constitutionalism9or

global governance.10 Faced with an international landscape that ‘looks more like a

maze of sheep tracks criss-crossing over a mountain range, half-hidden in the

undergrowth and interrupted by streams and rocks, linking high peaks and barely

known valleys,’11 legal scholars struggle to make sense of the new legal reality

progressively imposed by the seamlessly irresistible power of globalisation.

Political scientists and sociologists have long been scrutinising the transnational

space.12 It is a space formed by ‘transnational relations—contacts, coalitions and

interaction across state boundaries that are not controlled by the central foreign

policy organs of governments.’13 The expansion of the scope of transnational

action is driven by the pressure of globalisation, a trend heightened by the

digitalisation of our interactions. An acceleration of time combined with the

reduction of space characterises this evolution.14 Globalisation does not necessarily

entail, however, that the nation states are disappearing, evaporating. The new

transnational space is a complex ‘assemblage’15 of levels, structures and

organisations. One could easily fall for the reductionist view of a transnational

space, which is limited to the sphere of action of international organisations, the

extraterritorial intervention of states or the transnational activity of private entities.

These tunnel views ought to be avoided if one aims at grasping the full complexity

of a highly pluralist political and legal space. The transnational space is a

playground for social interactions rooted in very different loci or processes, and

escapes any simplification of these interactions along the pure lines of the

Westphalian international order. This evolving space is not deprived of power

relationships.16 But political power expresses itself in a more diffused way than the

one we are familiar with from the nation state. Many loci of power cohabit and

compete in the transnational space.

6G. Teubner (ed.), Global Law without a State (Darmouth, 1997).

7R. Michaels, ‘Global Legal Pluralism’, (2009) 5 Annual Review of Law & Social Science 1; P.S. Berman,

Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge University Press, 2012).

8B. Kingsbury, N. Krisch and R. Steward, ‘The Emergence of Global Administrative Law’, (2005) 68

Law and Contemporary Problems 15.

9A. Peters, ‘The Merits of Global Constitutionalism’, (2009) 16 Indiana Journal of Global Legal Studies

397.

10 A. Von Bogdandy, P. Dann and M. Goldmann, ‘Developing the Publicness of Public International

Law: Towards a Legal Framework for Global Governance Activities’, (2009) 9 German Law Journal

1375.

11 A. Vaughan Love, ‘Foreword’, in M. Likosky (ed.), Transnational Legal Processes (Butterworths, 2002),

at viii.

12 J.S. Nye Jr. and R.O. Keohane (eds), Transnational Relations and World Politics (Harvard University

Press, 1972); J. Laroche, Politique Internationale (LGDJ, 2000); T. Risse, Bringing Transnational Rela-

tions Back in: Non-State Actors, Domestic Structures, and International Institutions (Cambridge Univer-

sity Press, 1995); U. Beck, What is Globalization? (Polity, 2000).

13 S. Nye Jr. and R.O. Keohane, ‘Transnational Relations and World Politics: An Introduction, in

J.S. Nye Jr. and R.O. Keohane (eds), id., at Xi.

14 F. Kratochwil, ‘Globalization: What It is and What It is Not. Some Critical Reflections on the

Discursive Formations Dealing with Transformative Change’, in D. Fuchs and F. Kratochwil (eds),

Transformative Change and Global Order: Reflections on Theory and Practice (Litt, 2002), at 25–43.

15 S. Sassen, Territory—Authority—Rights: From Medieval to Global Assemblages (Princeton University

Press, 2006); P. Zumbansen, ‘Defining the Space of Transnational Law: Legal Theory, Global Govern-

ance & Legal Pluralism’, (2012) 21 Transnational Law & Contemporary Problems 305, 332.

16 U. Beck, Power in the Global Age (Polity, 2005).

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