Abstract

The present chapter elaborates on the legal theory or jurisprudential foundations informing the notion of European transnational private law. Building upon the influential scholarship by Anu Bradford and Joanne Scott on the global reach of EU law, the chapter departs by historiographically tracing the widespread reliance on proceduralisation parameters as a benchmark to foster the quality and integrity of policymaking within contemporary legal thought with the relatively overlooked articulation of process-based legal theories during the 1950s. Through an interconnected reading of the seminal works of Hart and Sacks, Myers and McDougal, and Jessup, the chapter shows how - despite their different focuses and outlooks- these post-war authors offer a coherent, innovative, and appealing conception of law that encompasses the national, international, and transnational contexts, and that largely transcends the contemporary appeals to proceduralisation as a mere simile to standards of due process or natural justice. The chapter signifies this conception as the ‘jurisprudence of process’ and characterises it as post-formalist and post-realist framework that conceives law as an inter-institutional dynamic of authoritative decisionmaking built upon pragmatic, socio-legal, contextual, purposive, and constitutive pillars. After highlighting the relationship of the jurisprudence of process with eminent predecessors and successors in European legal theory and discussing its foundational place and role for the constitution and subsequent transformations of the European Union as a political project, the chapter uses this framework to innovate on contemporary studies on the global reach of EU law on conceptual, analytical, and theoretical grounds. In this way, the chapter elaborates a renewed jurisprudential baseline for the prospective engagement with European transnational private law as a scholarly research agenda and as a matter of practical lawyering.