On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

5 Judges and Company

In this chapter, we examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria. Shapiro's 'The Globalization of Freedom of Contract' deals, first, with the unification of private law in the United States in the 1920s, which he then uses as a benchmark to assess the massive post-Second World War movement to a global law of contract. Stone Sweet's 'Islands of Transnational Governance' traces the development of a transnational legal system, comprised of anational contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. In addition to the more specific arguments made in the papers, we are attracted to the new Law Merchant for some more general reasons worth noting.

First, the rise of commercial arbitration offers an opportunity, always unusual, to explore further questions of how new judicial systems emerge and institutionalize. Because arbitration falls between mediation and adjudication on the continuum of triadic dispute resolution (TDR) (see Chapters 1 and 4), it allows us to treat the dynamics of TDR and judicialization in their more general guises, without having to start or end with state courts.

Second, the new Lex Mercatoria is a hugely significant fact of globalization, an example of the successful construction of a transnational political system by private actors. Political science's focus on public, to the exclusion of private, forms of governance seems to us unjustified, unjustifiable, and self-defeating. 1 The calls for more general theory, and recurrent complaints of an alleged 'small-n problem', cannot be squared with the discipline's embarrassing failure to expand its own property space to include private institutions, organizations, authority relations (Eckstein 1973). As these papers suggest, the Lex Mercatoria is rapidly emerging as a relatively comprehensive system of governance, one that will increasingly condition how state actors, including courts, manage markets.

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On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
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