1
Global Bukowina:
Legal Pluralism in the World Society
Gunther Teubner
(Appeared in: Gunther Teubner (ed.), Global Law Without a State.
Dartmouth, Aldershot 1997, 3-28)
"The center of gravity of legal development therefore
from time immemorial has not lain in the activity of
the state, but in society itself, and must be sought
there at the present time." (Eugen Ehrlich, 1936:
390).
I.
Who is right - Bill Clinton or Eugen Ehrlich? Both the US President and the
almost forgotten law professor from Czernowitz, Bukowina, in the far east of the
Austrian Empire have a utopian vision of a global legal order. In Bill Clinton's New World
Order it is the Pax Americana which will globalize the rule of law. His global law will be
based on the worldwide hegemony of a political-military-moral complex. In Eugen
Ehrlich's `Global Bukowina', it is civil society itself that will globalize its legal orders,
distancing itself as it does from the political power complex in the Brave New Worlďs
Vienna. Although Eugen Ehrlich's theory turned out to be wrong for the national law of
Austria, I believe that it will turn out to be right, both empirically and normatively, for the
newly emerging global law. Empirically, he is right, because the political-military-moral
complex will lack the power to control the multiple centrifugal tendencies of a civil world
society. And normatively he is right, because for democracy, it will in any case be better
if politics is as far as possible shaped by its local context.
Lex mercatoria, the transnational law of economic transactions, is the most
successful example of global law without a state.1
Global Bukowina is reaching far
beyond economic law. It is not only the economy, but various sectors of world society
that are developing a global law of their own. And they do so - as Giddens has put it - in
relative insulation from the state, official international politics and international public law
(Giddens, 1990: 70). The internal legal regimes of multinational enterprises are a
primarily, strong candidate for global law without a state.2
A similar combination of
globalization and informality can be found in labour law; here, enterprises and labour
unions as private actors are dominant law-makers.3
Technical standardization and
professional self-regulation have tended towards worldwide coordination with minimal
intervention of official international politics. The discourse on Human Rights' has
become globalized and is pressing for its own law, not only from a source other than the
1) See Mertens, Chapter 2 in this volume.
2) See Robé and Muchlinski, Chapters 3 and 4 in this volume.
3) See Bercusson, Chapter 6 in this volume.
2
states but against the states themselves.4
Especially in the case of human rights it
would be "unbearable if the law were left to the arbitrariness of regional politics"
(Luhmann, 1993: 574ff.). Similarly, in the field of ecology, there are tendencies towards
legal globalization in relative insulation from state institutions. And even in the sports
world people are discussing the emergence of a lex sportiva internationalis. (Simon,
1990, Summerer, 1990).
Thus we see a number of inchoate forms of global law, none of which are the creations
of states. In relation to them I wish to develop three arguments:
1. Global law can only be adequately explained by a theory of legal pluralism which
turned from the law of colonial societies to the laws of diverse ethnic, cultural and
religious communities in modern nation-states. It needs to make another turn from
groups to discourses. It should focus its attention on a new body of law that
emerges from various globalization processes in multiple sectors of civil society
independently of the laws of the nation states.
2. The emerging global (not inter-national!) law is a legal order in its own right which
should not be measured against the standards of national legal systems. It is not
- as is usually understood - an underdeveloped body of law which has certain
structural deficiencies in comparison to national law. Rather, its peculiar
characteristics as fully fledged law distinguishes it from the traditional law of the
nation states. These characteristics can be explained by differentiation within
world society itself. While global law lacks political and institutional support on
the global level, it is closely coupled with globalized socio-economic processes.
(3) Its relative distance from international politics will not protect global law from its
re-politicization. On the contrary, the very reconstruction of social and economic
(transactions as a global legal process undermines its non-political character
and is the basis of its re-politicization. Yet this will occur in new and unexpected
ways.5
We can expect global law to become politicized not via traditional
political institutions but within the various processes under which law engages in
`structural coupling' with highly specialized discourses.
II.
For his part, Bill Clinton has a master-thinker, whose authority he rightly invokes:
Immanuel Kant from Königsberg. Kanťs philosophical design Zum Ewigen Frieden
(eternal peace), is the legitimate predecessor of the new Pax Americana, even if this
latter Pax has now violated some of Kanťs fundamental principles - the minor ones, of
course, such as the principle of non-intervention (Kant, 1795: 346). For Kant, the
globalization of law, a `transcendental formula of public law', would be the consequence
of a legalization of international politics. If the sovereign states were to agree to certain
legal principles enshrined in a binding international agreement, a new and just legal
order for all mankind could develop (Ibid., 343ff.). America's New World Order is
supposed to grow out of these very roots: global law will follow from a globalization of
the politics of the United States itself, already subdued under the rule of law. Immanuel
4) See Bianchi, Chapter 7 in this volume.
5) Especially in the re-definition of the global-local distinction, resistance against globalisation. For a discussion of these issues, see
Wilder and Schütz, Chapters 8 and 9 in this volume.
3
Kant would have loved to see the image from his book's title adopted as a symbol of the
new order: the shingle of a Dutch inn-keeper on which a cemetery was painted - Eternal
Peace.
However, we can see today that history has refuted the political philosophers,
Kant and Clinton. Globalization has certainly now become a reality.6
It is a dynamic ongoing
process, but it follows patterns quite different from those which Kant and Clinton
would like to see. For Kant, only if the nation- states formed a political federation under
a republican constitution would a uniform globalization of many legal aspects of society
be possible - for example, a right to hospitality as a ius cosmopoliticum (ibid., 357f.).
The modern experience, however, is of a fragmented rather than a uniform
globalization. Today's globalization is not a gradual emergence of a world society under
the leadership of inter-state politics, but is a highly contradictory and highly fragmented
process in which politics has lost its leading role. Despite the importance of
international relations and international private and public law, politics and law still have
their centre of gravity in the nation-state. There are even strong opposing currents
towards the strenghtening of regional and local politics. The other social sectors have
clearly overtaken politics and law on the road to globalization and are founding their
global villages, independently of politics.
Here we obviously follow Wallerstein's critique of international relations but we
transform his alternative account of worldwide economies into a concept of worldwide
fragmented discourses. Non-political globalization occurs not exclusively via the internal
logics of a capitalist economic sector but via the internal dynamics of a plurality of social
subsystems (Wallerstein, 1979: Giddens, 1990: 65ff.; Luhmann, 1982) Capital has
never allowed its aspirations to be determined by national boundaries: this claim to
globality is also made by the other cultural provinces, as Karl Mannheim called the
autonomous sectors of society. Not only the economy, but also science, culture,
technology, health systems, social services, the military sector, transport,
communication media and tourism are nowadays self-reproducing world systems in
Wallerstein's sense, successful competitors with the politics of nation states. And while
the political process has reached only a proto-globality in international relations, that is,
nothing more than inter-systemic relations between national units with rather weak transnational
elements, the other social subsystems have already begun to form an authentic
global society or, better, a fragmented multitude of diverse global societies.
What does this multi-paced scenario of globalization imply for law? On the
global level, Eugen Ehrlich seems to be vindicated in his opinion that a centrally
produced political law is marginal compared with the lawyers' law in practical decisionmaking
and especially with the living law of the Bukowina (Ehrlich, 1913). Therefore
political theories of law will be of little use in understanding legal globalization, This is
true for positivist theories which stress the unity of state and law as well as for those
critical theories which tend to dissolve law into power politics. Staring obsessively at
power struggles in the global political arena of international politics where legal
globalization takes place only partially at best, they will overlook dynamic processes in
6) The term globalization is somewhat misleading. It suggests that a multitude of nationally organized societies are now moving
towards a single world society (Giddens, 1990: 12ff.). It is more appropriate, however, to date the existence of one world society
from the historical moment in which communication became worldwide. Nation states thus do not represent societies of their own but
exist according to a principle of territorial differentiation of one world society. Globalization, as we experience it today, means a shift
of prominence in the primary principle of differentiation: a shift from territorial to functional differentiation on the world level (Luhmann,
1982; Luhmann, 1993: 571ff.; Stichweh, 1995; Schütz, Chapter 9 in this volume).
4
other arenas where global legal phenomena are emerging in relative insulation from
politics. The crucial point is that "the structural coupling between law and politics via
constitutions has no correspondence on the level of world society" (Luhmann, 1993:
582).
What about theories of autonomous law? Can globalizing dynamics be identified
in Ehrlich's Juristenrecht (lawyers' law) (Ehrlich, 1913)? Do we experience something
like the globalization of autonomous law, as an extension of Wallerstein's ideas might
suggest, into a concept of global system differentiation? Historical evidence is poor.
There are few signs of a strong, independent, large-scale, global development of
genuine legal institutions, especially international courts (Higgins, 1994). The Den Haag
experience is not very promising, and recent attempts to continue the Nuremberg
tradition of world tribunals seem to be ending in financial and political disaster.
Because of the restrictions of international public law and the regionalism of politics,
worldwide legislation is a cumbersome process. A global administration scarcely exists
despite the existence of numerous international organizations. Perhaps the most
interesting and dynamic phenomenon within law's empire itself is the development of
private worldwide law offices, multinational law firms, which tend to take a global
perspective of conflict regulation (Flood, forthcoming).
Thus, if neither Ehrlich's state law nor lawyer's law lead the way to legal
globalization, his living law seems to be the best candidate: The center of gravity of
legal development therefore from time immemorial has not lain in the activity of the
state, but in society itself, and must be sought there at the present time. (Ehrlich, 1936:
390). Ehrlich, of course, is romanticizing the law-creating role of customs, habits and
practices in small-scale rural communities but, in the current globalization process, his
living law seems to take on a different and quite dramatic significance relying on cold
technical processes, no longer on warm communal bonds. Since it is not politics but
civil society itself that drives us toward a globalization of its various fragmented
discourses, the globalization of law is bound to follow as a spill-over effect of those
developments. From this, the main thesis follows: global law will grow mainly from the
social peripheries, not from the political centres of nation states and international
institutions. A new living law growing out of fragmented social institutions which had
followed their own paths to the global village seems to be the main source of global law.
This is why, for an adequate theory of global law, neither a political theory of law nor an
institutional theory of autonomous law will do; instead a theory of legal pluralism is
required.7
However, there are important differences between the above and Ehrlich's living
law of Bukowina. New theories of legal pluralism have turned away from colonial
situations and are now focusing on the interrelationship between nation state law and
the diverse laws of ethnic, cultural and religious communities.8
There will have to be yet
another turn if the theories are to cope with worldwide legal pluralism. The new global,
living law does not draw its strength from the law of ethnic communities as the old local,
living law was supposed to do and the more recent patchwork of minorities law is now
supposed to do. Clearly, the lifeworld of different groups and communities is not the
principal source for global law. Theories of legal pluralism will have to reformulate their
core concepts shifting their focus from groups and communities to discourses and
7)See Robé, Chapter 3 in one volume.
8) Santos, 1984; 1987; Fitzpatrick, 1984; Henry, 1983; 1987; Macaulay, 1986; Griffiths, 1986; Merry 1988; 873ff.
5
communicative networks (see Teubner, 1992: 1456ff.). The social source of global law
is not the lifeworld of globalized personal networks, but the proto-law of specialized,
organisational and functional networks which are forming a global, but sharply limited
identity. The new living law of the world is nourished not from stores of tradition but from
the ongoing self-reproduction of highly technical, highly specialized, often formally
organized and rather narrowly defined, global networks of an economic, cultural,
academic or technological nature.
Thus, we can expect global law to have characteristics that are significantly
different from our experience of the law of the nation state:
1) Boundaries: The boundaries of global law, are formed not by mainintaing a core
`territory' and expanding on a `federaľ basis as Kant perceived in terms of
nation-states, but rather, the boundaries of global law are formed by invisible
colleges, invisible markets and branches, invisible professional communities,
invisible social networks that transcend territorial boundaries but nevertheless
press for the emergence of genuinely legal forms. A new law of conflicts is
emerging on the basis of inter-systemic, rather than international, conflicts (see
Teubner, 1993: Ch. 5; forthcoming).
2) Sources of law: General legislative bodies will become less important with the
development of globalization. Global law is produced in self-organized
processes of structural coupling of law with ongoing globalized processes of a
highly specialized and technical nature (see Teubner, 1991).
3) Independence: While in nation-states, at least in some of them - the legal
process has developed a rather high degree of institutional insulation, global
laws will probably remain, for the foreseeable future, in a diffuse but close
dependency upon their respective specialized social fields with all their attendant
problematic side-effects of which strong exposure to outside interests and a
relative weakness of due process and the rule of law are important examples.
Obviously, this creates a strong need for legal change.
(4) Unity of the law: For nation-building in the past, unity of the law was one of the
main political assets - a symbol of national identity and simultaneously a symbol
of (almost) universal justice. A worldwide unity of the law, however, would
become a threat to legal culture. For legal evolution the problem will be how to
make sure that a sufficient variety of legal sources exists in a globally unified law.
We may even anticipate conscious political attempts to institutionalize legal
variation, for example, at regional levels.
III.
A war of faith is raging in the field of international economic law. Since the
sixties, international lawyers have fought a thirty years' war over the independence of a
global lex mercatoria. Is (Stein, 1995: 179 ff) positive law in its own right? Or is it an
ensemble of social norms which can be transformed into law only by the juridical
decisions of the nation-states involved?
This is a vicarious war. The controversy has model characteristics. It is
important not only for the law of global trade itself but also for other fields of global law
which are emerging in relative insulation from official international politics (see Section I
6
above). For these new areas of global law without the state, lex mercatoria stands as
the paradigmatic case. In its long history stretching back to the old medieval law
merchant, it has accumulated a rich experience as an autonomous non-national body of
law.9
What kind of lessons will lex mercatoria teach to other bodies of global law?
The debate on lex mercatoria is one of the rare cases in which practical legal
decision-making becomes directly dependent upon legal theory. But it is astonishing
how poor its theoretical foundation actually is. The entire debate is trapped in the
categories of those defunct legal theories which legal practitioners seem to remember
from their undergraduate jurisprudence courses. But if key concepts of contemporay
legal theory are introduced, are there insights to be gained for lex meractoria and other
forms of global law without the state?
On the one side we find lawyers (mainly French) for whom the new lex mercatoria
qualifies as an emerging global legal order. For them, this positive law has its sources
in worldwide commercial practices, unitary directives, standardized contracts, activities
of global economic associations, codes of conduct and the awards of international
arbitration courts. This legal order, they claim, is independent of any national
sovereign.10
These advocates of lex mercatoria have developed theoretical arguments the
poverty of which is only matched by the conceptual narrowness of their counterparts.
One line of thought tries to revitalize theories of customary law (Goldman, 1986: 114).
But what are their operational criteria for the discovery of empirical evidence of
consuetudo lunga? No adequate conceptualization of opinio juris on the global level is
provided, no attempt to demonstrate the legitimacy of customary law under modern
conditions of legal positivism (see Esser, 1967; Freitag, 1976; Zamora, 1989). A
second line of thought attempts to utilize early twentieth-century, Italian and French-style
institutionalism (Romano, 1918; Hauriou, 1933). They construe a droit corporatif of
global economic actors, vaguely resembling medieval merchant law (Goldman, 1964;
Fouchard, 1965, 1983; Kahn, 1982). This institutionalist vision perceives a close-knit
world community of merchants' - a societas mercatorum - almost as a formal
organization. Some compare it to a Rotary Club, others to the old merchanťs guilds and
endow it with solidarity and an `inner law of associations', with a disciplinary code and
organizational sanctions such as blacklisting and exclusion from membership. For the
competitive dynamics of today's world markets such a corporatism on the global scale
seems somewhat antiquated, to put it mildly. A third line of thought has developed the
adventurous construct of `contrat sans loi', of `self-regulatory contracts' which are
supposed to exist without any basis in national or international law. This construct is,
however, bound to fail when it tries to reconcile itself with the traditional doctrine of legal
sources. National laws are supposed to grant freedom of contract in the form of the
choice of non-national global law (Schmitthoff, 1964; 1982; Cremades and Plehn, 1984:
328ff).
On the other side we find mainly British and American lawyers who evoke the
sovereignty of the nation state in order to attack lex mercatoria as `law fiction', as a
`phantom' conjured up by a few speculative Sorbonne professors.11
Their arguments
9) For its history, see Baker, 1979; Berman, 1983: 3ff.; Meyer, 1994: 48ff.
10) Goldman, 1964; 1979; 1986; 1993;Fouchard, 1965, 1983; Kahn, 1982; 1992; Loquin, 1986; Osman, 1992.
11) Mann, 1968; 1984; Kassis, 1984; Mustill, 1987; Delaume, 1989; Highet, 1989; see also Bar, 1987: 76ff.; Sandrock, 1989: 77ff.;
Spickhoff, 1992.
7
are based on the nineteenth century notion of the unity of law and state: so-called
`anationaľ law is unthinkable! On this viewpoint, any legal phenomenon in the world
necessarily has to be `rooteď in a national legal order; it needs at least a `minimal link'
to national law. Lex mercatoria will never develop into an authentic legal order because
it does not regulate an exclusive territory with coercive power. Commercial customs by
themselves are incapable of creating law; they can only be transformed into law by a
formal act of the sovereign state. The same is true for standardized contracts; they
should be subordinated to the political control of national legal orders. Private
associations, in turn, may create their quasi-laws, but such `laws' are without binding
force. Finally, according to this view, international arbitration cannot develop an
authentic body of case law with precedential value because arbitration awards can
always be questioned by resort to national courts and by the `exequatur' procedures
within the nation states. Only the received doctrines of the classical law of conflicts,
private international law, are capable of adequately dealing with any international legal
conflict in economic affairs. If legal globalization is really necessary, then, the view
asserts, the only legitimate sources are international treaties and conventions under the
authority of international public law.
The bitterness of the controversy indicates that we are nudging at a taboo,
deeply rooted in practices, doctrines and theories of law. It demonstrates the
tremendous resistance that Ehrlich's global Bukowina has to face in a legal world still
conceptually dominated by the nation state. How deeply the taboo is rooted is
demonstrated by the almost apocalyptical tone of the critique of lex mercatoria:
"It is difficult to imagine a more dangerous, more undesirable and more
ill-founded view which denies any measure of predictability and certainty
and confers upon the parties to an international commercial contract or
their arbitrators powers that no system of law permits and no court could
exercise"(Mann, 1984: 197).
Indeed, lex mercatoria breaks a double taboo about the necessary connections
between law and state. First, it does so by suggesting merely `private' orders (contracts
and associations) produce valid law without authorization from and control by the state.
From Savigny on words, contract has been denied the dignity of a legal source and,
perceived as a mere factual phenomenon, it has been shifted to the domain of
empirical sociology (Savigny, 1840: 12). Since lex mercatoria is contract without law it
is a lex illegitima in this sense. Second, lex mercatoria breaks yet another element of
taboo by claiming to be valid outside the nation state and even outside international
relations. How can authentic law `spontaneously' emerge on a transnational scale
without the authority of the state, without its sanctioning power, without its political
control and without the legitimacy of democratic processes? Where is the global
Grundnorm (Kelsen, 1960)? Where is the global 'rule of recognition' (Hart, 1961: 92ff.)?
IV.
How would contemporary sociological theory of law deal with lex mercatoria and
with other forms of global law without the state? Of course, legal theory cannot `binď
legal practices of lex mercatoria in their determination of what is legal and what is not.
And there are, of course, many legal theories that come up with idiosycratic definition of
8
what law is.12
There is, however, one type of legal theory that makes itself explicitly
dependent upon legal practices. It observes law as a self-organizing process that
autonomously defines its boundaries. This is called second-order observation
(Luhmann, 1993: 61), and it observes how legal practices themselves observe the
world. The theory does not attempt to delineate what is inside and outside the law but
produces instead instruments of observation. It observes the observations of legal
practice. In its turn legal practice might gain by being informed about these
observations.
Such a theory would not outrightly reject positivist accounts that make the
existence of lex mercatoria dependent on the formal legal acts of a nation state. The
war of faith could come to a peaceful end - on the condition that the `global reach' of law
is no longer treated as a question of doctrinal definition but as an empirical question
which allows for variation. Our definitive question would be: where are concrete norms
actually production. In national politics and in international political relations? In judicial
processes within the nation-states and in international courts? Or in global economic
and other social processes? The hypothesis also seems to be well founded in legal
experience that a global economic law is developing along all three dimensions.13
Of
course, this presupposes a pluralistic theory of norm production which treats political,
legal and social law production on equal footing. (Teubner, 1992; Luhmann, 1993:
100ff., 320ff.; Robé in this volume).
However, taking into account the fragmented globalization of diverse social
systems, this theory would give different relative weights to these norm productions. A
theory of legal pluralism would perceive global economic law as a highly asymmetric
process of legal self-reproduction. Global economic law is law with an underdeveloped
`centre' and a highly developed `periphery'. To be more precise, it is a law whose
`centre' is created by the `peripheries' and remains dependent on them.14
Lex
mercatoria, then, represents that part of global economic law which operates on the
periphery in direct `structural coupling' with global economic organizations and
transactions. It is law stemming from paralegal rules which are produced `at the margin'
of law, at its boundary with economic and technological processes (Braeckmans,
1986).
This would allow us to identify numerous phenomena within a global commercial
law which - in accordance with traditional positivist theories - have a clearly national and
international basis. Attempts at the unification and harmonization of commercial law by
international treaties, as well as by national agencies and courts that adapt their
municipal law to global requirements, would be cases in point. But what about lex
mercatoria propria, the more difficult case of a pluralist law production on a non-political
and non-national basis?
The phenomenon to be identified is a self-reproducing, worldwide legal
discourse which closes its meaning that boundaries by the use of the legal/illegal binary
code and reproduces itself by processing a symbol of global (not national) validity. The
first criterion - `binary coding' - delineates global law from economic and other social
processes. The second criterion - `global validity' - delineates global law from national
and international legal phenomena. Both criteria are instruments of second-order
observation as mentioned above. They observe how the law observes itself, in our case
12)Mertens, Chapter 2 in this volume.
13)See the Classification of international economy: law by Schanze.
14) For the internal differentiation between centre and periphery, see Luhmann, 1993: 320ff.
9
how a global law observes itself in its environment of national legal orders and global
social systems.
With this definition we pay tribute to the `linguistic turn' in sociology and apply it
to the concerns of law and society. Accordingly, rule, sanction and social control, the
core concepts of classical sociology of law, recede into the background. Speech acts,
énoncé, coding, grammar, transformation of differences, and paradoxes are the new
core concepts utilized in the contemporary controversies on law and society15
. They
promise a deeper understanding both of lex mercatoria and global legal pluralism.
`Sanction' is losing the place it once held as the central concept for the definition
of law, for the delineation of the legal from the social and the global from the national. Of
course it has played an important role in the tradition, in John Austin's theory of law
(commands backed by sanctions) (1954: 13ff) in Max Weber's (1978) concept of law
(administration by legal professionals), in Eugene Ehrlich's (1913) distinction of legal
and non-legal norms, and in Theodor Geiger's behaviouralism (alternative
compliance/sanction)(1964: 68ff). In contemporary debates, sanctions are only seen as
one among many symbolic supports for normativity (for example, Luhmann, 1985: ch.
II.3) In these debates, the symbolic reality of legal validity is not defined by sanctions.
In the lex mercatoria debate, the fact that this kind of law is dependent upon the
sanctions of national courts has been used as an argument against its authentically
global character (for example, Kassis, 1984: 332ff; Bar, 1987: 80f; Schlessis, 1989:
152ff). If a specialized legal discourse, such as the commercial one, claims worldwide
validity then it does not matter where the symbolic backing of its claims by meams of
sanctions comes from, be it from local, regional or national institutions. It is the
phenomenological world constructions within a discourse that determine the globality of
the discourse, and not the fact that the source of the use of force is local.
Similarly `rules' lose the strategic position they once had as core elements of law
(Kelsen, 1960; Hart, 1961). In the switch from structure to process, the central elements
of a legal order are énoncés, communicative events, legal acts and not legal rules. It has
proved hopeless to search for a criterion delineating social norms from legal norms.
The decisive transformation cannot be found in the inherent characteristics of rules, but
in their insertion in the context of different discourses. Rules become legal as
communicative events emerge using the binary code and producing microvariations of
legal structure.
Again, in the lex mercatoria debate, the fact that its rules are rather
indeterminate has been used as an argument against its independent existence.
(Langen, 1973; Berman, 1983: 51; David, 1977: 17; Bar, 1987: 79). But the
determinacy of rules is a misleading criterion. The existence of an elaborate body of
rules is not decisive. What matters is a self-organizing process of mutual constitution of
legal acts and legal structures (for more details, see Teubner, 1992).
`Social controľ is likewise insufficent for our task of identifying, within lex
mercatoria, elements of a legal discourse of its own. Today's legal pluralists tend to
15) Despite the differences between various post-structuralist legal theories it is striking to observe how much their analytical tools
resemble each other. For post-modern theories, see Lyotard, 1987; Derrida, 1990; Arnaud, 1990; Ladeur, 1992; Douzinas and
Warrington, 1994; for discourse theory, see Jackson, 1988; for critical theory, see Habermas, 1992; Wiethölter, 1989; and Lenoble and
Berten, 1990; for systems theory, see Luhmann, 1993; Schütz, 1994; for game theory, see Kerchove and Ost, 1988, 1992.
10
replace the lex proprium with social control (Griffiths, 1986: 50, fn.41). In their account of
lex mercatoria as a form of social control they include within legal pluralism global
commercial customs and practices as well as transactional patterns and organizational
routines of multinational enterprises. They even go so far as to include purely economic
exigencies and the sheer pressures of power in global markets. However, if legal
pluralism entailed everything that serves the function of social control it would be
identical with a comprehensive pluralism of social constraints of any kind (Cohen, 1983:
101).
Why should legal pluralism be defined only by the function of `social controľ
(Griffiths, 1986: 50) and not the function of `conflict resolution' as theories of private
justice would suggest (Henry, 1983)? Why could the function of `coordinating behavior',
`accumulation of power', or `private regulation', which theories of private government
would emphasize (Macaulay, 1986) not be taken to define legal pluralism? And why not
`discipline and punish' which would tend to include any mechanism of disciplinary
micro-power that permeates social life (Foucault, 1979; Fitzpatrick, 1992)? Each of
these functions would bring the diverse social mechanisms in global markets and
multinational organizations into the realm of legal pluralism. Functional analysis of this
kind is not suited to providing criteria for the delineation of the legal and the non-legal in
lex mercatoria.
Now, if we follow the linguistic turn we would not only shift the focus from structure
to process, from norm to action, from unity to difference but, most important for
identifying the lex proprium, from function to code (see Ladeur, 1992; Luhmann, 1993:
Ch. 2; Teubner, 1993). This move brings forward the dynamic character of a worldwide
legal pluralism and at the same time delineates clearly the `legaľ from other types of
social action. Legal pluralism is then defined no longer as a set of conflicting social
norms but as a multiplicity of diverse communicative processes in a given social field
that observe social action under the binary code of legal/illegal. Purely economic
calculations are excluded from it as are the sheer pressures of power and merely
conventional or moral norms, transactional patterns or organizational routines. But
whenever such non-legal phenomena are communicatively observed under the
distinction directrice legal/illegal (Luhmann, 1992) they play a part in the game of legal
pluralism. It is the implicit or explicit invocation of the legal code which constitutes
phenomena of legal pluralism, ranging from the official law of the state to the unofficial
laws of world markets.
To avoid misunderstanding, I hasten to add that the binary code legal/illegal is
not peculiar to the law of the nation state. This is in no way a view of `legal centralism'
(Griffiths, 1986: 2ff.). It refutes categorically any claim that of the official law of the nation
states, of the United Nations or of international institutions enjoy any hierarchically
superior position. It creates instead the image of a heterarchy of diverse legal
discourses.
A global merchanťs law would belong to the multitude of fragmented legal
discourses, whether the discourse is of state law, of rules of private justice or
regulations of private government that play a part in the dynamic process of the mutual
constitution of actions and structures in the global social field. Nor is it the law of nationstates
but a symbolic representation of validity claims that determines their local,
national or global nature. The multiple orders of legal pluralism always produce
normative expectations, excluding, however, merely social conventions and moral
11
norms since they are not based on the binary code legal/illegal. And they may serve
many functions: social control, conflict regulation, reaffirmation of expectations, social
regulation, coordination of behaviour or the disciplining of bodies and souls. It is neither
structure nor function but the binary code which defines what is the lex proprium in local
or global legal pluralism.
V.
So far we have shown that a theory of legal pluralism is capable of identifying
authentic legal phenomena operating on the global level. But the following question is
still unanswered: given the absence of a global political system and the absence of
global legal institutions, how has it been possible to establish a global legal discourse,
based on the binary code of the law and a global symbol of validity without its being
rooted in national law? The answer? There is a paradox underlying the creation of
global economic law - the paradox of a self-validating contract. Only on the condition
that this paradox of contractual self-reference be successfully `de-paradoxifieď can a
global legal system in economic affairs get off the ground.
In lex mercatoria it is the practice of contracting that transcends national
boundaries and transforms a merely national law production into a global one numerous
international business transactions, standardized contracts of international
professional associations, model contracts of international organizations and
investment projects in developing countries. However, as soon as these contracts claim
transnational validity, they are cut off not only their national roots but their roots in any
legal order. This may be fatal. It is not only lawyers who declare contracts without law
unthinkable. The idea that any contract needs to be `rooteď in a pre-existing legal order
is not merely a legal axiom. Sociologists too, will protest against contrat sans loi. From
the work of Emile Durkheim onwards it has been the great sociological objection to any
autonomous contractualism that the binding force of contract needs to be rooted in
broader social contexts (Durkheim, 1933: ch. 7). Of a purported contractual lex
mercatoria sociologists would ask the famous Durkheimian question: where are the
non-contractual premises of global contracting?
Why not in the contracts themselves? Apparently this is a dead end. Any selfvalidation
of contract leads directly into the paradox of self-reference, into the
contractual version of the Cretan liar paradox (see Dupuy and Teubner, 1990). In the
positive version (We agree that our agreement is valid), it is a pure tautology. In the
negative version (We agree that our agreement is not valid) it is the typical selfreferential
paradox which leads to nothing but endless oscillation (valid - not valid - valid
...) and blockage. The result is undecidability. This underlying paradox is the principal
reason why lawyers, as well as sociologists, declare self-validating contracts
unthinkable and talk lex mercatoria out of existence.
Social practice, however, is more creative than legal doctrine and social theory.
Kautelarjurisprudenz, the practice of international draftsmen, has found a way to conceal
the paradox of self-validation in such a way that global contracts have become capable
of doing the apparently impossible. Global contracts are creating their non-contractual
foundations themselves. They have found three ways of de-paradoxification - time,
hierarchy and externalization - that mutually support each other and make it possible,
without the help of the state, for a global law of the economic periphery to create its own
legal centre.
12
Empirically, we find the most perfect `deparadoxification' in those commercial
contracts that construct a so-called "closed circuit arbitration" (Cremades and Plehn,
1984) This is a self-regulatory contract which goes far beyond one particular
commercial transaction and establishes a whole private legal order with a claim to
global validity. Apart from substantive rules it contains clauses that refer conflicts to an
arbitration "court" which is identical with the private institution that was responsible for
"legislating" the model contract. This is the "closed circuit".
In the first place, these contracts establish an internal hierarchy of contractual
rules. They contain not only "primary rules" in the sense established by Hart (1961:
77ff.), which regulate the future behaviour of the parties, but also `secondary rules' which
regulate the recognition of primary rules, their identification, their interpretation and the
procedures for resolving conflicts. Thus, the paradox of self-validation still exists, but it is
concealed in the separation of hierarchical levels, the levels of rules and meta-rules.
Unlike the rules, the meta-rules are autonomous, although both have the same
contractual origin. The hierarchy is `tangleď, but this does not hinder the higher
echelons from regulating the lower ones (Hofstadter, 1979: 684ff.; 1985: 70ff.; Suber,
1990).
Second, these contracts temporalize the paradox and transform the circularity of
contractual self-validation into an iterative process of legal acts, into a sequence of the
recursive mutual constitution of legal acts and legal structures. The present contract
extends itself into the past and into the future. It refers to a pre-existing standardization
of rules and it refers to the future of conflict regulation and, thus, renders the contract into
one element in an ongoing self-production process in which the network of elements
creates the very elements of the system.
Third, and most importantly, the self-referential contract uses the
deparadoxification technique of externalization. It externalizes the fatal self-validation of
contract by referring conditions of validity and future conflicts to external `noncontractuaľ
institutions which are nevertheless "contractual" since they are a sheer
internal product of the contract itself. The most prominent of these self-created external
institutions is arbitration which has to judge the validity of the contracts, although its own
validity is based on the very contract the validity of which it is supposed to be judging.
Here, the vicious circle of contractual self-validation is transformed into the virtuous
circle of two legal practices: contracting and arbitration. An internal circular relationship
is transformed into an external one. In the circular relationship between the two
institutional poles of contract and arbitration, a `reflexive mechanism', as Stein (1995:
164ff) we find the core of the emerging global legal discourse that uses the specialized
binary code, legal/illegal, and processes the symbol of a non-national, even of a noninternational,
global validity. An additional externalization of this reference to quasicourts
is the reference to quasi-legislative institutions, to the International Chamber of
Commerce in Paris, the International Law Association in London, the International
Maritime Commission in Antwerp and to all sorts of international business associations
(Schmitthoff, 1990). Thus transnational contracting has created ex-nihilo an institutional
triangle of private "adjudication", "legislation" and "contracting".
Why is this externalization so important for the creation of an authentically global
law? The answer is not only because it supports the de-paradoxification of contractual
self-validation, but also because it creates dynamics of interaction between an "official"
13
legal order and a "non-official" one, which is constitutive for a modern legal system. It
introduces an internal differentiation between organized and spontaneous law
production which creates the functional equivalent of `state law' and `contracts' in
national contexts (cf. Luhmann, 1993: 320ff.). Thus, arbitration bodies and private
legislation change dramatically the role of the international contract itself. Although
arbitration and standard contracting themselves are based on contract, they transform
the contractual creation of rights and duties into "unofficial law" which is now controlled
and disciplined by the `official law' of the arbitration bodies. Private arbitration and
private legislation become the core of a decision system which begins to build up a
hierarchy of norms and of organizational bodies. It makes the reflexivity of lex
mercatoria possible.(Stein, 1995: 164ff).
In this way the global legal discourse founds itself on the paradox of contractual
self-validation and differentiates itself into both an "official", a "non-official". Contrary to
the opinions of the defenders of lex mercatoria, it has nothing to do with customary law
because empirical evidence shows that it is not based on practices nobilitated by
opinio juris (Berman, 1983: 50ff.). Like other forms of non-customary law it is based on
decisions of positive law-making. It is positive law in the forms of `private' legislation,
adjudication and contracting. Certainly, there are customs which are incorporated into
contracts as `commercial practices'. They do play a role but a rather limited one.
Nor should lex mercatoria be equated with a droit corporatif. On the world market
there does not exist anything similar to an `corporation' of merchants which could
discipline its members. Of course there are formally organized professional
organizations, but there is no formally organized `business community' which could
produce an inner law of associations via the mechanism of membership, entry and exit.
The formal sources of legal validity are transactions of the world market which is
structurally different from a formal organization.
Finally, lex mercatoria has little in common with the contrat sans loi of some
international jurists. (Schmitthoff, 1964; 1982; Cremades and Plehn, 1984: 328ff;
Mertens, Ch.3 in this volume). Certainly, it shares the assumption that contract is the
decisive mechanism of validity transfer, and is neither national law, commercial custom
or a kind of global corporatism. However, these jurists still attempt to find the
legitimation of the `self-regulatory contracť in national law:
If national laws permit the parties to a contract to choose the law
applicable to their contract, then it is only logical [sic] that they must also
permit to make the contractual conditions so complete that there is no
room any longer for the application of any national law (Schmitthoff, 1964:
69).
Obviously, this is not `logicaľ. To permit a choice of law that is, a choice among
existing national laws, in no way includes the permission to create a new law outside
any national legal order. The `comitas' of the sovereign nation states refers to other
national laws, but not to an `a nationaľ legal order. In contrast, our concept of global
legal pluralism works on the basis of two assumptions which are more radical than an
implied delegation of state power. The first assumption refers to traditional theories of
legal sources. The global context, in which no pre-existing legal order can be said to be
the source of validity of global contracts, compels us to define contracting itself as a
source of law, as a source on equal footing with judge-made law and with legislation. In
14
our case, contracting is even the primary source of law and the basis for its own
rudimentary quasi-adjudication and quasi-legislation. The second assumption refers to
theories of legal legitimacy. `Rules of recognition' need not necessarily be produced
hetero-referentially by an independent `public' legal order and then be applied to
`private' contractual arrangements. What we face here is a `self-legitimating' situation,
comparable only to authentic revolutions in which the violence of the first distinction is
law-creating. `In ogni violenza vi e un carattere di creazione giuridica' (Resta, 1984: 10;
see also 1985: 59ff.). Clearly, the silent revolution of lex mercatoria needs - like any law
based on revolutionary acts - `recognition' by other legal orders. But this is only a
secondary consideration. Recognition is not constitutive of the existence of a legal
order.
VI.
In measuring lex mercatoria against the standards of national legal orders it
would be a grave error to describe the differences as `deficiencies' inherent in lex
mercatoria and conclude that it is of a not-yet-developed legal order on the global scale
(Virally, 1982: 385; Siehr 1985: 117). The asymmetries of a weak institutional centre
which depend on a strong economic periphery are not a merely transitory matter. They
are due to their global environment, that is, due to globalized markets and enterprises
with a `global reach' on the one side and on regional politics with `international relations'
on the other. Thus it can be anticipated that a global economic law discourse will find a
dynamic stability of its own and will develop `eigenvalues' which must be understood in
their own right.
(1) Structural coupling with global economic processes:
This is the overriding characteristics of lex mercatoria. It is a law that grows and
changes according to the exigencies of global economic transactions and
organizations (Braeckmans, 1986). This makes it extremely vulnerable to interest and
power pressures from economic processes. Since there is no institutional insulation of
its quasi-legislation and its quasi-jurisdiction, the relative autonomy and independence
which historically national legal orders have been able to achieve will probably remain
something unknown. For the foreseeable future lex mercatoria will be a corrupt law - in
the technical sense of the word. At the same time, lack of institutional autonomy makes
this law vulnerable to political pressures for its political `legitimation' (Joerges, 1974:
41; Bonell, 1978).
(2) Episodic character:
Self-reproductive legal systems comprise interactional episodes that are linked
to each other in a second communicative circle (precedents, legal doctrine,
codification) which is the locus of the evolutionary mechanism of stabilization (Teubner,
1987; 1993: ch. 3). This is lex mercatoria's weak point, since it consists of episodes
with rather weak communicative links. We find myriads of highly sophisticated
contractual regimes which - as in the case of investment projects in developing
countries (see Schanze, 1986) - can be of extreme economic and political importance
for a whole region. However, the links between these regimes of contractual feudalism
are rather flimsy so that global law's empire slightly resembles the Heilige Römische
Reich Deutscher Nation, an uncoordinated ensemble of many small domains, a
patchwork of legal regimes. The principal links between them are still supplied by
private associations which are responsible for the formulation of model contracts
(Schmitthoff, 1990; Stein, 1995: Ch.3).
15
Arbitration bodies are likewise strong in producing episodes and weak in linking
them up with one another. There are some signs of a system of precedents in
arbitration matters, beginning with the publication of reasoned arbitration awards and a
practice of using old awards as precedence. (Carbonneau, 1985; Paulsson, 1990;
Berger, 1992; Stein, 1995: 165ff).
The constant flow of arbitration awards is nourishing a new legal order
that is born of and particularly suited to regulating world business. Trade
usages and customs as well as professional regulations will attain the
status of law as they become emboided in arbitral decision making
(Cremades, 1983: 533)
Moreover, there are structural obstacles to the systematic development of an
authentic case law, not to speak of a hierarchy of arbitration courts which could provide
consistency within the second communicative circle. Thus, the chances that an
autonomous legal evolution of lex mercatoria will occur are rather slim. While legal
variation and selection mechanisms are indeed in place, its stabilization mechanism is
so underdeveloped that in the foreseeable future the development of this law will follow
the `externaľ evolution of the economic system but fail to develop an `internaľ evolution
of its own.16
In the long run, lex mercatoria may very well develop certain institutionalized
linkages of its episodes which would make its own path-dependent evolution possible.
However, as one can extrapolate from contemporary tendencies, these linkages will
look quite different from their main national counterparts - court hierarchies and
parliamentary legislation. As already mentioned, there is an inchoate practice of
precedent and stare decisis in commercial arbitration. However, the lack of any
institutionalized court hierarchy which could guarantee a certain normative consistency
is compensated by an increasing reliance on mutual observation and adaptation of
arbitration bodies and by the increasing reliance of the "Big Three" in international
commercial arbitration - Chambre de Commerce International, Iran - United Staes
Claims Tribunal, and International Centre for Settlement of Investment Disputes (Stein,
1995: 167). A reputational hierarchy will substitute for an organizational hierarchy.
Similarly, the political linkage of adjudicational episodes to legislative-parliamentary
bodies which we know from the traditional nation state will not be repeated in global
economic law. Rather, the reference will be to the "legislators" of private regimes, the
economic and professional associations, and to a whole heterarchical network of
international organisations, private and public. From this multiple circular linkages of its
episodes, lex mercatoria may gain the ability to develop beyond its mechanisms for
variation and selection independent mechanisms for retention, the interplay of which
might result in an autonomous path of legal evolution.
(3) Soft law:
The normative substance of lex mercatoria is extremely indeterminate. Instead of
refined rules of private law, it consists of broad principles that change in their
application from case to case (Mustill, 1987: 174ff; Hoffmann, 1987: 220ff.). This is one
of the reasons why some lawyers negate its existence as law altogether (Bar, 1987:
79). From the preceding discussion we know why they are wrong: they are seeking a
16) For a concept of external and internal evolution of law, see Teubner, 1993: ch. 4.
16
body of rules as the `essence' of an autonomous legal order, instead of looking for a
communicative process that moves the symbol of validity according to the binary legal
code. Although there are several attempts to codify ruler of global economic law, the
softness of lex mercatoria is remarkable. It is more a law of values and principles than a
law of structures and rules (Meyer, 1994: 128ff.) But is softness a vice or a virtue?
Again, we should not see this as a deficiency, but as a typical characteristic of global
law. It compensates for the lack of global enforcibility; it makes this law more flexible
and adaptive to changing circumstances; it makes it better suited to a global unification
of law.17
And it makes it relatively resistant to symbolic destruction in the case of
deviance. Stability comes from softness. Lex mercatoria is soft law, not weak law.
VII.
In the long run its depoliticized origin and its apolitical character cannot protect
lex mercatoria from a repoliticization. On the contrary: the juridification of economic
relations provokes political interference. While it is extremely difficult for any political
process in both national politics and international relations to intervene in global
economic transactions or in multinational organizations, things change drastically with
juridification. Once the contractual mechanism stabilizes the structural coupling between
law and the economy, political processes tend to use the result of this coupling for their
own purposes. This is observable in the case of lex mercatoria which has been usable
to protect itself from the malstrom of international politics. And it will be less able to do
so in the future (Joerger, 1974: 41; Boxuell, 1978; Kernell, 1981; Béguin, 1985; Stein,
1995: 247ff).
Re-nationalization of lex mercatoria is one issue. The more the issue of
`competitiveness' of national economies or regional blocks in the global economy
comes to the foreground of international politics, the more lex mercatoria will be under
pressure to bend to national economic policies. The development of intellectual
property law on an international scale is a good case in point (Nimmer, 1992). In any
case, lex mercatoria will become an openly politicized sphere of law where the political
role of international organizations moves to the foreground.
The North-South divide is the other issue which will not allow lex mercatoria to
retain its idyllic private law status. The discussion of the `New Economic World Order'
has already had repercussions on global economic law. The UN codification of sales,
the Standard Contracts of UNECE are good examples of the repoliticization of lex
mercatoria. However, these mechanisms of repoliticization are still rather external to
lex mercatoria itself, the politics of will undergo substantial change only when the inner
mechanisms of this global law production process are politicized: when the internal
structures and processes of the law-creating mechanism - the law-making bodies in
international private associations and the composition and procedures of arbitration
boards come under public scrutiny and debate.
colleen
17)See Mertens, Chapter 3 in this volume.
17
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