Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power

By Zumbansen, Peer | Law and Contemporary Problems, Spring 2013 | Go to article overview

Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power


Zumbansen, Peer, Law and Contemporary Problems


I

INTRODUCTION

The proliferation of private norm-making, that is, the creation of legally binding rules outside of the institutional, state-based systems of rule-setting, very forcefully accentuates the dilemma of the modern nation state's exhaustion in an era of globalization. Seen against the background of the law-as-victim thesis, the ubiquitous forms of "private ordering," both inside and outside of the nation-state, are regularly read as signs of the erosion processes, which allegedly characterize the general fate of the sovereign state in the global era and find a particularly striking illustration in the relativization of the state's authority to administer and to control the institutions of norm-creation. (1) However, from a sociological perspective, the current interest of so-called governance theories (2) in "social norms" falls squarely into the discipline's concern with the study of societal differentiation processes. Such accounts play a crucial role in informing legal scholars' inquiries into the nature and consequences of private norm-creation processes for the study of law in general. (3)

Compressed into a relatively small space then, we can discern some of the central challenges to current legal thinking: under the impression of an unquestionably deep-running transformation of forms of public and private ordering, lawyers seek explanations by contextualizing these developments. What they find are impressive accounts of globalization processes, which have prompted a considerable number of social science disciplines to fundamentally rethink their analytical categories and conceptual frameworks. In this context, legal scholars find that their own accounts of the growing limits of regulatory capacity in view of, for example, border-crossing environmental or security concerns, coalesce with observations made by political scientists, sociologists, geographers, or anthropologists regarding a fundamental decentralization and privatization of norm-creation and legal-political decision-making.

For law, to be sure, there is much at stake, as this multidisciplinary diagnosis strongly suggests lawyers' need to rethink the proper foundations, boundaries and--in fact--the nature of their object itself. The rich accounts of legal pluralism and non-state-based norm-creation, which are central to current depictions of the shift "from government to governance," can be read as strong signals that law itself has an identity crisis, a crisis regarding its own nature and function. It is important to note, however, that accounts of a co-existence of legal and non-legal forms of social regulation, while proliferating under the impression of reduced state capacity to effectively regulate transnational issues, have always been part of the central make-up of legal theory. Early anthropological and legal theoretical accounts of the extensive efficacy of "informal" orders should have alerted lawyers a long time ago to the tension between law and non-law, which arguably lies at the heart of any legal system.

This article suggests a revisiting of the field of lex mercatoria, the body of norms associated with a transnational "law merchant." These norms and their surrounding institutions and processes, although much contested, have forever assumed a prominent place in studies of private ordering, driven particularly by the fact that the lex mercatoria reaches far, far back into past centuries of economic globalization, and is thus seen as testifying to both the reality and the viability of transnational law "beyond the state." (4) In light of the concerns raised by lawyers regarding the limits of law and legal norm-creation in the context of globalization, the pressing question concerning the lex mercatoria appears to be that of the possibility of an autonomous legal order, that is, of a functioning legal system, which is itself not grounded in the nation-state's institutionalized norm-creation processes. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.