Between Law and Social Norms: The Evolution of Global Governance

Abstract

It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulty in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality." We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation." As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria, and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research.

Spreading the News on Carbon Capture and Storage: A State-Level Comparison of US Media

“…Despite its direct application to challenges faced by late-modern society, however, Luhmann's theory provides an exclusively macroperspective and offers little guidance for empirical research. This may account for the fact that, despite the remarkably central position Luhmann affords communication, relatively few communication and policy researchers have made use of this powerful social theory (Boswell, 2011;Calliess & Renner, 2009;Fischlein et al, 2010;.…”

Tendential Autonomy and Conflict Containment in Nonstate Governance Mechanisms

“…Efforts to accommodate one stakeholder group in the face of new circumstances risk offending another group. Flexibility is often viewed as contrary to effective regulation and even to the root meaning of law (Calliess and Renner 2009). But program inflexibility imposes a rigorous procedural even‐handedness, an unpromising basis for, say, evidence‐based adaptive management, or effective responses to shifting environmental and social conditions.…”

“…He explicitly states that other features commonly associated with law have been revealed as unnecessary in recent international law systems: clear enforcement mechanisms, strong internal principles of precedent, and implementation by states. Calliess and Renner (2009) (see above) add procedural criteria. These include open referral of disputes to a third party, the publication of reasons for decisions, and the central role of precedent.…”

“…Do they really operate as “law” or simply as “norms”? If they do operate as law, can they be flexible and responsive (Calliess and Renner 2009)?…”

Law, Economics and Evolutionary Theory: State of the Art and Interdisciplinary Perspectives

“…Whiletheneedforaninterdisciplinaryandintegratedstudyofthecurrentcrisisthusliesinthe evident ambiguity of the very starting points of any assessment 83 , the promise of an interdisciplinary study of institutions goes further still: precisely because of the distinct premisesandnormativeorientationsinlegalandeconomicthinking,thereisagreatneedfor continued translation of methodological approaches in both disciplines. 84 The by itself is about as explanatory or illuminating as the claim that market failures challenge the embedding legal enforcement system in a straight-forward, causal manner 93 : "Fromtheforegoingitmaybeseenthataproperunderstandingofpath-dependence,andof thepossibilitiesofexternalitiesleadingtomarketfailure,isnotwithoutinterestingimplications foreconomicpolicy.Butthosearenotatallthesortsofglibconclusionsthatsomecriticshave alleged must follow if one believes that history really matters -namely, that government shouldtrytopickwinnersratherthanletmarketsmakemistakes.Quitethecontrary…. […].One thing that public policy could do is to try to delay the market from committing to the future inextricably, before enough information has been obtained about the likely technical or organizational and legal implications, of an early, precedent-setting decision."…”