Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power
Zumbansen, Peer, Law and Contemporary Problems
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. …