DUKE LAW SCHOOL Duke Law School Legal Studies Research Paper Series Research Paper No. 81 September 2005
The Re-State-ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism Ralf Michaels Associate Professor of Law Duke University
[email protected]
This paper can be downloaded without charge from the Social Science Network Electronic Paper Collection: http://ssrn.com/abstract=809244
Copyright 2005 by Ralf Michaels
The Re-State-ment of Non-State Law The State, Choice of Law, and the Challenge from Global Legal Pluralism Ralf Michaels*
I. Introduction Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. 25 years ago, Perry Dane proposed to conceptualize the relationship between state and church as a conflict of laws instruments to deal with conflicts between state and religion1. Similarly, we may want to apply an analysis similar to conflict of laws to the conflicts between law and culture, visible for example in the debate about a “cultural defense”2. But we would need a general theory for this, and such a theory is lacking. Textbooks in the United States and in the United Kingdom, usually define conflict of laws as the field that deals with situations that have contacts to more than one state, and choice of law is the choice which state’s law applies; non-state law is not discussed3. In Europe, particularly in
*
Associate Prof. of Law, Duke University School of Law, and Lloyd Cutler Fellow, The American Academy in Berlin, Fall 2005. Thanks for extremely valuable suggestions and discussions go to Paul Schiff Berman, Annelise Riles, and Peer Zumbansen, as well as to participants in a Duke Law School early stages workshop. This is part of a bigger project on the interplay between globalization and conflict of laws.
1
Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L. J. 350, 365-376 (1980); see also Gregory A. Kalscheur, John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism." 1 Journal of Catholic Social Thought 231 (2004). For a recent analysis of the relation from a position of religious pluralism, see Stephen D. Smith, The Pluralist Predicament: Contemporary Theorizing in the Law of Religious Freedom, 10 Legal Theory 51 (2004). Notably, the normative pluralism invoked excludes the state itself: the state can be neutral vis-à-vis the divergent religions precisely because it stands above all of them. This approach, of course, was the goal of attack in Marx’s article onf the Jewish Question. See Karl Marx, On the Jewish Question, in Robert Tucker (ed.), The Marx-Engels Reader (1978).
2
Alison Dundes Renteln, The Cultural Defense (2004); Leon Sheleef, The Future of Tradition: Customary Law, Common Law, and Legal Pluralism, 262-285 (2000).
3
E.g. Eugene Scoles et al., Conflict of Laws (4th ed. 2004), 1; Lawrence Collins (ed.), I Dicey and Morris on the Conflict of Laws (13th ed. 2000), no. 1-001, 1-060.
1
Germany, there are some debates about the applicability of a special body of non-state norms, the new law merchant4, but usually no general discussion of non-state norms ensues. Individual proposals do not lead to a general discussion. In short, choice of law as a discipline has largely defined itself as conflict of state laws, and considers issues regarding the applicability of non-state normative orders as peripheral at best. Yet the question whether non-state norms can be the applicable law moves from the periphery to the center once we view conflict of laws through the lens of globalization. Globalization reminds us, among others, that the state is constrained, not only by other states and by supranational organizations, but also by non-state organizations (e.g. NGOs), communities (e.g. religious groups), players (e.g. multinational corporations). All of these actors play roles in the globalizing world that were traditionally reserved to the state. One of these roles may be the role of lawmaker – we may argue that non-state actors create norms like the state. This ides is articulated in the theory of global legal pluralism, the theory that there is a plurality of legal orders, both by states and by other, non-state communities. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses5. Authors on global legal pluralism, if they address the interactions between different legal orders, often use concepts like interlegality, which for example, Santos defines as “the impact of legal plurality on the legal experiences, perception and consciousness of the individuals and social groups
4
E.g. Christian v. Bar & Peter Mankowski, I Internationales Privatrecht (2nd ed. 2003). § 2 no. 7287, pp. 76-88; Gerhard Kegel & Klaus Schurig, Internationales Privatrecht (9th ed. 2004), 127128;.
5
For important exceptions see Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. Pa. L. Rev. 311 (2002) (“Globalization of Jurisdiction”); Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Re-Defining Governmental Interests in a Global Era, 153 U. Pa. L. Rev. 1819 (2005) (“Cosmopolitan Vision”); Paul Schiff Berman, From International Law to Law and Globalization, 43 Colum J. Transnat’l L. 485 (2005) (“Law and Globalization”); Jürgen Basedow, The Effects of Globalization on Private International Law, in id./Toshi Kono (eds.), Legal Aspects of Globalization – Conflict of Laws, Internet, Capital Markets, 1, 6 ff. (2002); Andreas FischerLescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int’l L. 999 (2004).
2
living under conditions of legal plurality, above all the fact that their everyday life crosses or is interpenetrated by different and often contrasting legal orders and legal cultures.”6 This “phenomenological counterpart of legal plurality”7 is hard to operationalize for choice of law.8 Yet arguably choice of law requires a specific legal way of dealing with legal plurality. We might hope to find such a legal way in the writings of Conflict of Laws scholars. Yet these scholars, on the other hand, deal with non-state normative orders (if at all) without a deeper underlying theory. They normally reject the applicability of non-state normative orders with the argument that such orders can only derive their authority from the state, without questioning why this should be so. As a consequence, proposals are limited. On the one hand this lack of interaction is surprising. We may think that both fields could benefit from the encounter. On the one hand, global legal pluralism would find an ideal testing ground for the otherwise academic question whether non-state normative orders can be recognized as “law” or not. Conflict of laws, on the other hand, would find an entrance into the world of globalization which has otherwise, strangely, not had great influence on the field. On the other hand, the lack of interest in both disciplines may reflect the fact that the questions they ask are different, that therefore their tools and instruments are different, and that translation of the findings from one discipline to the other is not easily possible. Of course, this would be all the more reason to analyze these relations. Indeed, such analyses are starting to emerge. One of those who open our eyes for the potential impact of legal pluralism on conflict of laws is Paul Berman. While he explicitly leaves the elaboration of this effect to a later article9, his own take on conflict of laws and law and globalization enables us to conceive
6
Boaventura de Sousa Santos, Towards a New Common Sense (2nd ed., 2002), 97, cf. 437; for a sympathetic comment see William Twining, Globalisation and Legal Theory, 229-231 (2002)
7
Santos, Common Sense (supra n. ), 437.
8
But see, for an attempts to combine both for the relationship between the law of the European Union and the laws of its member states Marc Amstutz, Zwischenwelten – Zur Emergenz einer interlegalen Rechtsmethodik im europäischen Privatrecht, in Christian Joerges & Gunther Teubner (eds.), Rechtsverfassungsrecht. Recht-Fertigung zwischen Privatrechtsdogmatik und Gesellschaftstheorie, 213 (2003); see also Fischer-Lescano & Teubner (supra n. ), 1007-1008.
9
Berman, Cosmopolitan Vision (supra n. ) 1821.
3
of a possible relation between pluralism and conflict of laws10: Drawing on Cover, Berman argues that lawmaking is not a matter of state power but of community definition; as a c onsequence lawmaking power is not confined to stated but can be claimed by all kinds of communities11. The law of these communities can be applicable if they succeed in what Berman calls jurispersuasion – convincing others of their legitimate lawmaking power12. Finally, moving from these communities to the state with its conflict of laws regime, states should acknowledge this lawmaking power of nonstate communities13. Such acknowledgment, one might follow (though Berman himself does not say so explicitly), should take place through choice of law rules: the normative orders of non-state communities can become applicable law. The other author who has dealt with the relationship between global legal pluralism and conflict of laws is Gunther Teubner, both alone and in a recent article co-authored with Andreas Fischer-Lescano. While Teubner’s approach to legal pluralism14 is very different from Berman’s in many respects15, some elements are quite parallel. Drawing on Eugen Ehrlich, Teubner argues like Berman that lawmaking in globalization is no longer (if it ever was) a monopoly of the state16; law is created mainly in the peripheries, by non-state communities, not by invoking an authority, but by using the code of legal/illegal. This finding is not confined to legal theory or sociology, as Teubner makes clear in the example of the new law merchant: “The debate on lex mercatoria is one of the rare cases in which practical legal decision-making becomes directly dependent upon legal
10
Cf. Berman, Cosmopolitan Vision (supra n. ), 1863-64.
11
Berman, Law and Globalization (supra n. ) 507-511.
12
Berman, Law and Globalization (supra n. ) 538-540; for his explication of the term jurispersuasion see ibid. 533-538.
13
Berman, Law and Globalization (supra n. ), 540: “These developments reflect the increasing need for official law to acknowledge (and sometimes accommodate) people’s affiliations with multiple communities.”
14
See especially Teubner, The Two Faces of Janus: Rethinking Legal Pluralism, 13 Cardozo L. Rev. 1443, 1451 (1992); id., Global Bukowina (supra n. ); id., Global private regimes: Neo-spontaneous Law and Dual Constitution of Autonomous Sectors in World Society?, in Karl-Heinz Ladeur (ed.) Public Governance in the Age of Globalization, 71 (2004).
15
In fact, Teubner has, together with his co-author Fischer-Lescano, criticized Berman of “cultural reductionism”: Fischer-Lescano & Teubner (supra n. ), 1004 n. 18.
16
Teubner, Global Bukowina (supra n. ), ___.
4
theory.”17 Although Teubner moderates the point somewhat18, this seems to apply that, prima facie, states in their conflict of laws systems should be ready to apply non-state normative orders because legal theory shows that they are law. We need a choice of law concept, Fischer-Lescano and Teubner argue, “that is not based on the determination of one territorial law which has the closest relation to the conflict, but which seeks instead to identify the functional regime to which the legal issue in question belongs.” In other words, the realization that law in the world moves from segmentary differentiation between states to functional differentiation between regimes forces the state to adapt its choice of law regime. Moreover, they argue, because most situations have contacts to more than one regime, it will be necessary to develop special substantive norms19. This paper is not a critique of, Berman’s or Teubner’s work on the relationship between pluralism and conflict of laws. Berman has not yet worked out the pluralism part of his theory20, Teubner has not yet developed a full theory of conflict of laws21, so any critique would first have to create the object it then tries to critique. Neither does this paper not set out its own theory of conflict of laws for global legal pluralism. Instead, its goal is more modest: to attain conceptual clarity about the encounter of pluralism and conflict of laws that would make such a theory possible. To this end I ask four questions: First, what is global legal pluralism, and to what extent can the normative orders created by non-state communities be considered as “law” from a theoretical standpoint? (II.) Second, how does state law, including conflict of laws, currently deal with non-state normative order? I will show that the rejection of non-state law by traditional conflict of laws doctrine must
17
Teubner, Global Bukowina (supra n. ), ___; almost verbatim also in id., Breaking Frames: The Global Interplay of Legal and Social Systems, 45 Am. J. Comp. L. 149, 150 (1997).
18
Teubner, Global Bukowina (supra n. ), ___: “Of course, legal theory cannot `bind' legal practices of lex mercatoria in their determination of what is legal and what is not.”
19
Ibid. 1023. It is not clear why situations that have connections with more than one regime are more frequent than situations with connections to more than one country, and why, as a consequence, the development of special substantive norms turns from the exception to the rule.
20
Supra n.
21
He has, however, previously used conflict of laws methodology as inspiration for conflict between different communications; see, in addition to Fischer-Lescano & Teubner (supra n. ) in particular Teubner, Law as an Autopoietic System, ch. 6; id., De collisione discursuum: Communicative Rationalities in Law, Morality and Politics., 17 Card. L. Rev. 901 (1996).
5
be understood in combination with the other methods the state uses to account for nonstate normative orders which I call incorporation, deference, and delegation. The combination shows that the state does acknowledge non-state normative orders, but it does not acknowledge them as law. (III.) This leads to the third question, namely why the state acknowledges the laws of foreign states as law while denying this status to non-state normative orders. The reason is that the state would otherwise undermine its own position: while treating foreign state law as law strengthens its position, treating non-state law as such would weaken it (III.C.). (IV.) Of course, such weakening of the state need not be a bad thing, and the fourth question therefore asks what a more inclusive approach to conflict of laws, recognizing non-state normative orders as law, would require and imply. This fourth question cannot be answered in full here, but I try to show that such a reconceptualization of the state would be more far-reaching, and potentially less attractive, than proponents of legal pluralism may wish for (V.). I conclude with a cautionary note: the relation between global legal pluralism and conflict of laws is more complex, and may necessitate more radical rethinking of traditional ideas, than one might think (VI.) II.
Uncoupling Law from the State: Non-State Normative Orders and Global
Legal Pluralism Although law predates the rise of the state by centuries22, we have, since the rise of the nation state, come to equate law with state law23. If globalization is, in large part, about overcoming the monopolistic position of the state24, then it should also be about overcoming its monopolistic position in the creation, adjudication and enforcement of law. In a world that knows other actors than states, we should expect to find other laws than state laws. Two examples are most prominent in the debate on globalization: the
22
Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983).
23
For a history of the relation between state and law see Santos, Common Sense (supra n. ), 21 ff.; Martin Shaw, Theory of the Global State, 173 ff. (2000).
24
Of course, the role of the state in globalization is more complex and controversial. For an overview of positions see David Held & Anthony McGrew, The Global Transformations Reader (2nd ed., 2003), esp. part II.
6
alleged autonomous law of the internet, and the new law merchant, we should therefore start our analysis here A.
Examples of Non-State Normative Orders
1. The Autonomous Law of the Internet Does the internet have, or even constitute, its own legal order? This was the topic in the well-known debate in the 1990s between Johnson and Post on the one hand, and Goldsmith on the other, about conflict of laws in the internet. Descriptively, Johnson and Post argued descriptively that the internet was its own space25, which gave it its own territorial sovereignty26 with its own legal order27. Normatively they followed that states should apply, or at least not interfere with, the autonomous law of the internet. Jack Goldsmith challenged both claims. Descriptively, he rejected the idea that cyberspace is its own space outside real space28 with its own legal order. Even if transactions took place through the internet, the relevant effects happened to real people, in real locations, under the sovereign power of real states29. Normatively, he saw no need to change the principles of conflict of laws, because online transactions are functionally identical to
25
David R. Johnson & David G. Post, "Law and Borders -- The Rise of Law in Cyberspace," 48 Stan. L. Rev. 1367, 1378-9 (1996); Lawrence Lessig, Code and other Laws in Cyberspace, 190 (1999).
26
See also Lawrence Lessig, Code and other Laws in Cyberspace, 198 (1999) (“To the extent that architectures in cyberspace are rules that affect behavior, the space is sovereign”).
27
David Post, Governing Cyberspace, 43 Wayne L. Rev. 155 (1996); Johnson & Post (supra n. ), 1380-7; see also David R. Johnson, Susan P. Crawford & John G. Palfrey, The Accountable Net, 9 Va. J. of L. & Technology 9 (2004); for an analysis of self-regulation on the internet see Monroe E. Price & Stefan G. Verhulst, Self-Regulation and the Internet (2005); for a number of mostly libertarian articles on internet self-governance see Adam Thierer & Clyde Wayne Crews Jr (eds.), Who Rules the Net? Internet Governance and Jurisdiction, 71 (2003), a collection that contains a number of mostly libertarian texts on internet self governance can be found in Adam Thierer & Clyde Wayne Crews Jr (eds.), Who Rules the Net? Internet Governance and Jurisdiction, 71 (2003); cf. Berman, Globalization of Jurisdiction (supra n. ), 409.
28
Goldsmith (supra n. ), 1239-40, 1250.
29
Goldsmith, Against Cyberanarchy (supra n. ), 1239 ff; id., The Abiding Significance of Territorial Sovereignty, 5 Ind. J. Global Leg. Stud. 475, 479 (1998). A dramatic example was recently reported from China. A man had been defrauded, in an internet role game, of a virtual weapon. After the police was unwilling to help him, he took the matter into his own hands, found out the real person behind the virtual character that had taken his weapon, and killed him. See Jonathan Watts, Harsh Reality of China’s Fantasy Craze, The Guardian, March 31, 2005, available at http://www.guardian.co.uk/international/story/0,,1448600,00.html.
7
offline transactions30. In a rejoinder, David Post made a more modest claim than before. Instead of reiterating the theme of the internet as a virtual territory with its own law, he now emphasized that technological change had brought about changes in conflict of laws before, and that the new technology of the internet should bring about a similar change in approach31. For our purposes not all details of the debate are relevant. Arguably, Johnson and Post overestimated, while Goldsmith underestimated, the novel character of the internet32. What matters here is a point that Post raises with regard to whether or not internet transactions are “functionally identical“ to offline transactions: “it depends entirely on the question you’re asking”33: “To the extent that our question requires us to ask whether ‘real people in one territorial jurisdiction [are] transacting with [other] real people in other territorial jurisdictions,’ cyberspace and realspace transactions are, for that purpose, identical. To the extent that our question requires us to ask something else—whether, say, they involve bits and software, or instantaneous communication with enormous numbers of people across the global network, etc.—they are not.’34 This shifts the debate from an ontological one – how different “is” the internet “really” from traditional space, to what extent “is” it its own space – to a normative one: Which factors are relevant for our specific purposes? Do we care about the fact that conduct still takes place, effects are still felt, within countries, in order to determine jurisdiction and applicable law? Then indeed the internet does not need any new rules35. Or does scale matter, the fact that the internet adds a tremendous amount of complexity, as Post holds?36 Then, maybe, the internet
30
Goldsmith, Against Cyberanarchy (supra n. ), 1233-6; Mankowski (supra n. ), ___.
31
David Post, Against ‘Against Cyberanarchy’, 17 Berkeley Technology L. J. 1 (2002), http://www.law.berkeley.edu/journals/btlj/articles/vol17/Post.stripped.pdf.; also in Thierer & Crews Jr (supra n. ), 71; cf. Berman, Globalization of Jurisdiction (supra n. ), 409.
32
This point is made by, e.g. Lawrence Lessig, Code and other Laws of Cyberspace, 193 (1999). However, Lessig himselves seems to overemphasize the novelty of the internet with regard to conflicts of laws, cf. ibid. 192-194.
33
Post, Against (supra n. ), 10.
34
Post, Against (supra n. ), 12 (internal quote omitted).
35
Goldsmith supra n. ; for a similar position in Germany see Peter Mankowski, Das Internet im Internationalen Vertrags- und Deliktsrecht, 63 RabelsZ 203 (1999).
36
Post, Against (supra n. _), 12-16.
8
really requires new rules, or a new approach. Of course, by rephrasing the issue like this, it becomes clear that the state is not “forced”, in any way, to recognize the internal order of the internet as “law”. Rather, the question becomes one of choice. As Richard Ford has put it, “[I]f the Internet becomes cyberspace, it will be because we made it so.”37 Whether the internet has its own legal order, then depends on whether we recognize its as one. Is this recognition in the sense of conflict of laws? Is it the acknowledgment that the normative order of the internet can be the “applicable law” in a choice of law process, that “decisions” of the internet should be enforced by state courts? Although they do not say so explicitly, Johnson and Post argue in this direction when they ask the state to grant comity to the normative order of the internet38. Comity becomes for them a (somewhat crude) conflict of laws norm, mandating that “those who care more deeply about and better understand the disputed activity should determine the outcome”39. It is telling that Goldsmith in his response, although he focuses much more explicitly on conflict of laws, does not even address the implied claim that conflict of law between state law and internet law are possible; he only considers conflicts between state law. Whether a conflict of laws problem exists or not is, it seems, a matter of perspective.
37
Richard Ford, Against Cyberspace, in: The Place of Law (Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey, eds.), 147, 151 (2003).
38
Johnson & Post (supra n. ), 1391-5. The authors combine comity with delegation, although both are analytically different instruments; for my own concept of delegation see supra, III.3.
39
Johnson & Post (supra n. ), 1392. The first prong of their test sounds like a comparative impairment test, the second one like a test of regulatory advantage. For comparative impairment as a choice of law test see William F. Baxter, Baxter, William F., Choice of Law and the Federal System, 16 Stan. L. Rev. 1 (1963); for regulatory advantage see Richard Posner, Economic Analysis of Law, 6th ed. (2002). Later (at p. 1394-5) Johnson & Post develop a kind of public policy exception of the internet, based on its fundamental policy of free speech, against state regulation. It is not clear why such a policy exception by the internet should be relevant to the state.
9
2. The New Law Merchant Another sphere of non-state law, or its invocation, is the so-called new law merchant.40. Law merchant in fact refers to at least two historically distinct ideas of laws: the medieval law merchant, and the “new law merchant”41. The old lex mercatoria, the theory goes, was the non-national law of international commerce – not created by the authority of states, but rather created by and within international commerce itself. This non-state law was recognized not only in several treatises42, but also in decisions by state judges43: Malynes explained law merchant in 1622 as “customary law approved by the authority of all kingdoms and not as law established by the sovereignty of any prince”44; Lord Mansfield, in a decision from 1765 that would later be cited approvingly by Justice Story in Swift v. Tyson45, explained that “[t]he law of merchants, and the law of the land, is the same: a witness cannot be admitted to prove the law of merchants. We must consider it as a point of law.”46 This old body of non-state law has been invoked in attempts to
40
Internet law has frequently been linked to law merchant; for two early occurrences see Trotter Hardy, The Proper Legal Regime for ‘Cyberspace’, 55 U. Pitt. L. Rev. 993, 1019-1021 (1994); Raj Bhala, Self-Regulation in Global Electronic Markets through Reinvigorated Trade Usage, 31 Idaho L. Rev. 863, 902-905 (1995); see also Johnson & Post (supra n. ), 1389 f.; Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law, 53 U. Toronto L. J. 265 (2003).
41
An excellent history, and historiography, of law merchant old and new is Nikitas Hatzimihail, The Many Lives – and Faces – of Lex Mercatoria: An Essay on the Genealogy of International Business Law (unpublished, on file with author); see also Nicholas H.D. Foster, Foundation Myth as legal formant: The medieval Law Merchant and the new Lex Mercatoria (2005), http://www.forhistiur.de/zitat/0503foster.htm.
42
Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and Its Afterlife (edited, translated and introduced for the Ames Foundation by Mary Elizabeth Basile etal., 1998); Gerard Malynes Lex mercatoria or the Ancient Law-Merchant (1622); Wyndham Beawes, Lex mercatoria rediviva, or the Merchant's directory, being a compleat guide to all men in business ((4th ed., London: J. Rivington, 1783, reprinted Ann Arbor: UMI Books, 2001).
43
Pillans v van Mierop (1765) 3 Burr. 1663, (1765) E.R. 1035.
44
Malynes (supra n. ___), Foreword. Modern analysts tend to disregard the first half of the sentence, the requirement of approval by the sovereign.
45
Swift v. Tyson, 41 U.S. 1, 20 f. (1842).
46
Pillans (supra n. ), 3 Burr. 1669, E.R. 1038. Cf. also the dissent, insofar, by Aston, J., at 3 Burr. 1675, E.R. 1041 (“If there be such a custom of merchants as has been alleged, it may be found by a jury : but it is the Court, not the jury, who are to determine the law.”
10
revitalize the idea since the middle of the 20th century47. In France Berthold Goldman developed a concept of lex mercatoria as a legal order that developed, on the basis of party autonomy of merchants, in a private, spontaneous way48; in England Clive Schmitthoff saw a convergence of national trade laws and non-state trade practices, including standard terms, developing into a new transnational law merchant49; in Germany Klaus-Peter Berger has more recently developed a system of “creeping codification of law merchant”50. Like the old law merchant, the new law merchant is said to be an autonomous non-state legal order – with special rules and special adjudicating bodies, in particular arbitral panels. And like the old law merchant, so the new law merchant should be acknowledged, and applied, by state courts51. Similar to the autonomous law of the internet, lex mercatoria is a contested concept both on descriptive and normative grounds. This is true already for the ancient law merchant which, at least as a substantive body of law, was in all likelihood a myth52. Similarly, opponents of the new law merchant argue that it is not “law” in a meaningful sense, but at best a developing normative order of trade customs, and of case “law” for arbitrators, always connected back to state law through applicable law and the need of enforcement
47
For a collection of essays see Thomas Carbonneau, (ed.), Lex mercatoria and Arbitration (revised ed., 1998).
48
Berthold Goldman, Frontières du droit et lex mercatoria, 9 Archives de Philosophie du droit, 177 (1964).
49
Clive Schmitthoff, International Business Law: A New Law Merchant, in Current Law and Social Problems (1961).
50
Klaus Peter Berger, The Creeping Codification of the Lex Mercatoria (1999).
51
Andreas Kappus, „Lex mercatoria“ als Geschäftsstatut vor staatlichen Gerichten im deutschen internationalen Schuldrecht, 13 Praxis des internationalen Privat- und Verfahrensrechts (IPRax) 137.
52
Oliver Volckart and Antje Mangels, Are the roots of the Modern Lex Mercatoria Really Medieval?, 65 So. Econ. J. 427 (1999); Albrecht Cordes 'The Search for a Medieval Lex Mercatoria', (2003) Oxford University Comparative Law Forum 5 at ouclf.iuscomp.org; Charles Donahue, Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica, 5 Chi. J. Int’l L. 21 (2004); but see Emily Kadens, Order Within Law, Variety Within Custom: The Character of the Medieval Merchant Law, ibid. 39; Stephen E. Sachs, "From St. Ives to Cyberspace: The Modern Distortion of the Medieval 'Law Merchant'" (March 17, 2005). Yale Law School. Yale Law School Student Scholarship Series. Paper 5. http://lsr.nellco.org/yale/student/papers/5; see also Nicholas H.D. Foster, Foundation Myth as legal
formant: The medieval Law Merchant and the http://www.forhistiur.de/zitat/0503foster.htm. (supra n. ___)
new
Lex
Mercatoria
(2005),
11
in state courts. Proponents on the other hand point out that the new merchant has all elements necessary for state law53 and in effect even replicates the internal problems of state law54. Again, obviously, the answer depends on the question: whether law merchant has elements comparable to those of state law, as proponents point out, or whether it lacks the formal elements of state law, as opponents argue. Even more prominently than for the internet there is a debate as to whether law merchant can be the applicable “law” in litigation, a debate that focuses mostly on arbitration, but is also addressed with regard to state courts and state conflict of laws. Proponents point out that law merchant is not only law in every relevant sense, but in addition is superior to national laws because of its transnational character55. Opponents on the other hand emphasize that no contract can exist outside a national legal order and that therefore law merchant cannot substitute for a national applicable law56. B. From State Legal Pluralism to Global Legal Pluralism In both these areas the decisive question is whether these normative orders are “law”. This is the question addressed by theories of legal pluralism57, sometimes also legal plurality58 or legal polycentricity59. Legal pluralism posits that the state is not the only producer of law, that non-state communities can produce law as well. An old concept of legal pluralism, “state legal pluralism”, was still harmless to the state, because it
53
E.g. Teubner, Global Bukowina (supra n. ).
54
Peer Zumbansen, Lex mercatoria: Zum Geltungsanspruch transationalen Rechts, 67 Rabels Zeitschrift 637 (2003)
55
E.g. Friedrich Juenger, The Lex Mercatoria and Private International Law, 60 La. L. Rev. 1133 (2000).
56
E.g. v. Bar/Mankowski (supra n. ), § 2 no. 76.
57
For overviews see Warwick Tie, Legal Pluralism (1999); Jørgen Dalberg-Larsen, The Unity of Law: An Illusion? On Legal Pluralism in Theory and Practice (2000); Gordon R. Woodman, Ideological Combat and Social Observation: Recent Debate about Legal Pluralism, 42 J. of Legal Pluralism 21 (2000); Franz Benda-Beckmann, Who’s Afraid of Legal Pluralism?, 47 J. of Legal Pluralism 37 (2002); Twining, A Post-Westphalian Conception of Law (review article), 37 L. & Soc. Rev. 199, 248-251 (2003).
58
Santos, Common Sense (supra n. ), 89 ff.
59
Hanne Petersen & Henrik Zahle (eds.), Legal Polycentricity: Consequences of Pluralism in Law (1995); Surya Prakash Sinha, Legal Polycentricity and International Law (1996). The analogue in political science is multicentric governance; see David Held, Global Covenant, 75-86 (2004).
12
acknowledged the central position of the state and only assumed the existence of various non-state legal orders under its umbrella60. Legal anthropologists found that there are many non-state legal orders, especially in colonies. Western colonizing nations had introduced their own legal orders, but below them – with or without the acknowledgement of the official law – other legal orders lived on. Originally the focus was mainly on non-Western societies. Soon, however, researchers found that, while colonial systems presented the coexistence of various legal orders more openly, such a normative plurality existed in Western States as well61. In fact, such an analysis had already been done. Eugen Ehrlich in particular developed the idea that, even within the Western nation state, a multiplicity of normative orders existed, which deserved to be called “law62. Ehrlich juxtaposed law in the books and living law, and postulated that the essence of law was not produced in texts, or by state authorities, but rather developed in society63. According to Ehrlich, “[t]he center of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but
60
M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Non-Colonial Laws (1975). For legal pluralism as a phenomenon of colonialism and post-colonialism see Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (2002). For analysis of the relation between state and law, from the perspective of legal pluralism, see Franz von BendaBeckmann, Who’s Afraid of Legal Pluralism?, 47 J. of Legal Pluralism 37, 52-57 (2002).
61
Cf. Lauren Benton, Law and Colonial Cultures (2002), 9 (“Colonies were not distinctive because they contained plural legal orders but because struggles within them made the structure of the plural legal order more explicit”); see also id., Beyond Legal Pluralism: Towards a New Approach to Law in the Informal Sector, 3 Social and Legal Studies 223 (1994).
62
Eugen Ehrlich, Grundlegung der Soziologie des Rechts (1913), English translation: Principles of the Sociology of Law (1936). In English see, David Nelken, Law in Action of Living Law? Back to the Beginning in Sociology of Law, 4 Leg. Stud. 157 (1984); most recently, Assaf Likhovski, Czernowitz, Lincoln, Jerusalem, and the Comparative History of American Jurisprudence, 4 Theoretical Inquiries L. 621, (2003) (unfortunately with references only to sources in English). The most comprehensive study of Ehrlich’s life and work is Stefan Vogl, Soziale Gesetzgebungspolitik, freie Rechtsfindung und soziologische Rechtswissenschaft bei Eugen Ehrlich (2003).
63
Eugen Ehrlich, Die Erforschung des lebenden Rechts, 35 Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich 129 (1911); id., Das lebende Recht der Völker der Bukowina, 1 Recht und Wirtschaft 273, 322 (1912), both also in Eugen Ehrlich, Recht und Leben. Gesammelte Schriften zur Rechtstatsachenforschung und zur Freirechtslehre, pp. 11 and 43 respectively (M. Rehbinder. ed., 1967).
13
in society itself, and must be sought there at the present time."64 As a consequence, there could be a plurality of legal orders within one territory, most of them non-state orders. The state provided an elaborate system of conflict of laws to mediate between the different legal orders. At he same time, the state still provides the overarching, universal umbrella65. This phenomenon of state legal pluralism came under critique: it was unduly centered on the state66, and for that reason unduly ethnocentric67, because the state was a peculiarly Western concept. Thus, newer approaches attempt to generalize the idea of legal pluralism. Because this move away from the central position of the state mirrors a similar interest in globalization theory, the approach has been used for globalization under the notion of global legal pluralism6869. For example, Gunther Teubner has raised both Ehrlich’s concept and legal pluralism to a global one, under the title of “global Bukowina”70, invoking Ehrlich’s studies of the Bukowina as an area with numerous
64
Ehrlich, Sociology of Law (supra n. ), 390. For Ehrlich, this was the one sentence that “contains the substance of every attempt to state the fundamental principles of the sociology of law”, ibid., p. xv.
65
See, e.g., Roberto Mangabeira Unger, Knowledge and Politics, 281-284 (1975).
66
John Griffiths, What is Legal Pluralism?, 24 J. of Legal Pluralism 1 (1986); Martha-Marie Kleinhans & Roderick A. Macdonald, What is a Critical Legal Pluralism? 12 Can. J. of L. & Soc. 25, 30 ff. (1997).
67
See Christoph Eberhard, Towards an Intercultural Legal Theory: The Dialogical Challenge, 10 Social and Legal Studies 171, 176-181 (2001), describing the work of legal anthropologist Michel Alliot; Benda-Beckmann, Who’s afraid (supra n. ), 53-55.
68
With different meanings, the term is used, most prominently, by Francis Snyder, Oren Perez, and Gunther Teubner. See Teubner, Global Bukowina (supra n. ), 15; Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. of Int’l L. 998, 1009-1012 (2004); Martti Koskenniemi, Global Legal Pluralism: Multiple Regimes and Multiple Modes of Thought, 12-17 (2005), available at http://www.valt.helsinki.fi/blogs/eci/PluralismHarvard.pdf, forthcoming in Harv. Int’l L. J.; Sally Engle Merry, Human rights and global legal pluralism: reciprocity and disjuncture, in: Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Anne Griffiths (eds.), Mobile people mobile law : expanding legal relations in a contracting world, 215 (2005); see also Keebet von BendaBeckmann, Globalisation and Legal Pluralism, 4 International Law FORUM du droit international, 19 (2002); Luca Giuseppe Pes, Il pluralismo giuridico, 190 ff. (2003), available at www.dhdi.free.fr/recherches/theoriedroit/memoires/pesmemoir.pdf.
69
Berman, Globalization of Jurisdiction (supra n. ), 504-
70
Gunther Teubner, ‘Global Bukowina’: Legal Pluralism in the World Society, in Global Law without a State, 3 (Gunther Teubner, ed., 1997); see also id., Global private regimes: Neo-
14
different non-state legal orders. Francis Snyder has developed a concept of global legal pluralism consisting of a structural element, the involvement of “a variety of institutions, norms, and dispute resolution processes located, and produced, at different structured sites around the world”, and a relational element, concerning the relations between such sites71. Oren Perez presents, under the heading of global legal pluralism (but without explicit relation to theories of legal pluralism), a more public-law-oriented concept of legitimate authority of non-state actors72. Boaventura de Sousa Santos postulates a third period of legal pluralism after pluralism in the colonial/postcolonial context and in the modern capitalist state, which he describes as “postmodern legal plurality”73. William Twining presents a somewhat similar theory of a plurality of legal systems, of which state law is only one74. Finally, Paul Schiff Berman, drawing on the work of Robert Cover75, draws a world of multiple overlapping communities, both territorial and non-territorial, which define themselves through the assertion of jurisdiction and in turn have jurisdiction because they are communities76. One consequence is that “the state does not hold a
spontaneous law and dual constitution of autonomous sectors in world society?, in: Karl-Heinz Ladeur (ed.) Globalization and Public Governance, 71 (2004). 71
Francis Snyder, Governing Economic Globalisation: Global Legal Pluralism and European Law', 5 Eur. L. J. 334 (1999), also in id. (ed.), Regional and Global Regulation of International Trade 1 (2002); French version Gouverner la mondialisation économique : pluralisme juridique mondial et droit européen, 54 Droit et société ____ (2003); see also id., Economic Globalisation and the Law in the 21st Century, in: Austin Sarat (ed.), The Blackwell Companion to Law and Society, ___ (2003); id., Ethique, OMC et pluralisme juridique mondial: Réflexions sur la Gouvernance de la mondialisation, in Yves Nauder (ed.), Mondialisation et éthique des échanges, ___ (2003); id. (ed.), International food security and global legal pluralism - sécurité alimentaire internationale et pluralisme juridique mondial (2004).
72
Oren Perez, Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law, 10/2 Ind. J. of Global Leg. Stud. 25 (2003); id., Ecological Sensitivity and Global Legal Pluralism, 7 ff. (2004); id. Global Legal Pluralism and Electronic Democracy (2004), http://www.biu.ac.il/law/unger/working_papers/3-04.pdf;
73
Santos, Towards a New Common Sense (supra n. ), 92.
74
Twining, Globalisation and Legal Theory, 82-88, 224-233 (discussing Santos).
75
Robert Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1983); Cover, The Folktales of Justice: Tales of Jurisdiction, 14 Capital U. L. Rev. 179-203 (1985). For a reading of Cover’s theory of jurisdiction as a theory of legal pluralism see Emmanuel Melissaris, The More the Merrier? A New Take on Legal Pluralism, 13 Social & Legal Studies 57, 65-68 (2004).
76
Berman, Globalization of Jurisdiction (supra n. ), 501 ff.
15
monopoly on the articulation and exercise of legal norms77”; non-state communities78 produce laws as well, and assert jurisdiction79. Jurisdiction in this sense is defined not as the assertion of state power (which, of course, would be exclusive to the state), but rather as “the locus for debates about community definition, sovereignty, and legitimacy”80. C. Criteria for determining “Law” There are considerable differences between these concepts, as well as among theorists supporting them. There are disciplinary differences between commercial lawyers81, legal sociologists (Ehrlich), legal anthropologists (Santos, Berman) and legal theorists (Twining, Teubner)82. Methodologically, we see approaches from pragmatism83, postmodernism84, feminism85, systems theory86. Yet they all agree, in one way or the other, that “law” cannot and should not be restricted to “state law”. Of course, this leaves the problem of finding another criterion: “where do we stop speaking of law and find ourselves simply describing social life?”87 Most authors are unhappy with the insight that
77
P. Berman, Law and Globalization (supra n. ), 493; cf. ibid. 510 (“the nation-state is denied any special status as a law-giver.”)
78
P. Berman, Jurisdiction (supra n. ___) 472-490 (distinguishing subnational, transnational, supranational and cosmopolitan communities). Cf. Twining, Globalisation and Legal Theory, 139: global, international, regional, transnational, inter-communal, sub-state, non-state.
79
Berman, Globalization of Jurisdiction (supra n. ___) 323 (“if nation states are imagined, historically contingent communities … and if those nation-states … no longer define unified communities (if they ever did), then there is no conceptual justification for conceiving of nationstates as possessing a monopoly on the assertion of jurisdiction.”); cf. ibid. 464.
80
Berman, Globalization of Jurisdiction (supra n. __) 319.
81
Starting with Malynes (1622) who was a practitioner rather than a scholar.
82
Twining, Globalisation and Legal Theory (supra n. ) 82-88, 224-233.
83
Klaus Peter Berger, The New Law Merchant and the Global Market Place, in: Berger (ed.), The Practice of Transnational Law, p.1, 3 (“Cartesian pragmatism”).
84
Boaventura de Sousa Santos (n. ) ; see also id., Law: A map of misreading: Toward a Post-Modern Concept of Law, 14 J. of Law & Soc. 279, 293 (1987) (identifying legal pluralism as « the key concept in a post-modern view of law »).
85
Ambreena S. Manji, Imagining Women’s ‘Legal World’: Towards a Feminist Theory of Legal Pluralism in Africa, 8 Social & Legal Studies 435 (1999).
86
Teubner, Global Bukowina (supra n. ).
87
Sally Engle Merry, Legal Pluralism, 22 L. & Soc. Rev. 869, 878 (1988).
16
“all social control is more or less legal”88, yet they disagree about the appropriate criterion. By and large we can distinguish two strands of criteria, depending on whether an outside observer or a participant is asked to distinguish law from non-law. (These are roughly coterminous with H.L.A. Hart’s distinction between an external and an internal viewpoint.) The first strand of criteria focuses on a neutral outside observer: it tries to determine objective criteria that suggest to a neutral outside observer whether a normative order is or is not law. Many authors use a functional definition of law. They call those orders “law” that fulfill the same functions like state law, for example social control89 or the resolution (or avoidance) of disputes. Because non-state orders fulfill these functions similarly to state law, they must also be called and treated as laws. Partly for such reasons, others use structural explanations. For example Malinowski already described as law “all the rules conceived and acted upon as binding obligations.”90 Other authors use a second strand of criteria to determine what is and is not law, they look at whether participants themselves treat what they do as law. For this, some authors focus on language. They ask whether a certain normative order uses the binary code of legal/illegal91, or, more simply, just ask whether a normative order carries the label “law”92. Others focus on the creation of communities: law, or jurisdiction, is the place in which communities assert themselves as communities; communities create themselves through the creation of law93. Finally, moving from societal to individual definitions,
88
J. Griffiths, What is Legal Pluralism?, 24 J. of Legal Pluralism 1, 39.
89
Sally Falk Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, 7 Law & Soc. Rev. 719, 721; Griffiths (supra n. ) 50 n. 41; Gordon Woodman, Ideological compat and social observation: Recent debate about legal pluralism, 42 J. of Legal Pluralism 21, 45; Santos, Towards a New Common Sense (supra n. ) 95 (together with dispute resolution).
90
Bronislaw Malinowski, Crime and Custom in Savage Society, 55 (1926)
91
Niklas Luhmann, Das Recht der Gesellschaft, 60 f., 67-75, 165 ff. (1993); Gunther Teubner, The Two Faces of Janus: Rethinking Legal Pluralism, 13 Cardozo L. Rev. 1443, 1451 (1992).
92
Brian Tamanaha, A General Jurisprudence of Law and Society, 193 (2001); for critique see William Twining, A Post-Westphalian Conception of Law, 37 Law & Soc. Rev. 199, 223-231 (2003); Melissaris (supra n. ), 69-70.
93
Cover, Nomos and Narrative (supra n. ); Berman, ___. See Tamanaha, J. L. & Soc. 1993.
17
“critical” legal pluralism adopts an “autobiographical” definition of law by the self and “presumes that legal subjects hold each of their multiple narrating selves up to the scrutiny of their other narrating selves, and up to the scrutiny of all the other narrated selves projected upon them by others.”94 Under these concepts, definitions of what is, and is not, law are hard to make. Would the internet, and the new law merchant, qualify as “law” under the other definitions? Certainly, both promote social ordering and social control. The new law merchant also aims at dispute resolution; this is less clear with the internet. Moving to the structural criterion, law merchant imposes binding obligations on tradesmen, while the internet controls rather through its technology, its architecture95. Law merchant is referred to by some participants as law (though not always), this is, again, less the case for the internet. Certainly, merchants consider themselves some kind of “community”, the same may be true of users of the internet. In short, while the new law merchant has a good claim to qualify as “law” under most named criteria, proponents of an autonomous internet law have a harder case to make. Of course none of the criteria to determine law is fully convincing. Functional concepts are subject to critique – because few normative orders will fulfill all functions that state law fulfills, the choice of the relevant criterion must be made. A structural explanation focusing on “binding obligations” faces the problem addressed already by H.L.A. Hart in his criticism of Austin’s jurisprudence: Because it finds no way to distinguish legal norms from mere moral norms, cannot distinguish legal from “merely” normative pluralism. The focus on language runs into problems of translation: what is the code “legal/illegal”, what is “law” in the different language of a non-state society?96 Merely
94
Martha-Marie Kleinhans & Roderick A. Macdonald, What is a Critical Legal Pluralism?’,12 Canadian Journal of Law and Society 25, 46 (1997).
95
James Boyle, Foucault in Cyberspace (1997), http://www.law.duke.edu/boylesite/foucault.htm; Joel Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553 (1998); Lawrence Lessig, The Place of Cyberlaw, in: Sarat et al. (supra n. ), The Place of Law, 131, 135 ff. (2003).
96
Cf. also Tamanaha, General Jurisprudence (supra n. ) 189-191.
18
focusing on communities leads to cultural essentialism97. Again, the question of whether or not these orders qualify as “law” cannot be answered in the abstract, it depends on the question asked. At the same time, the answer does not have direct consequences. Legal theorists may therefore consider it futile but also unnecessary to distinguish strictly legal and nonlegal98. Nothing follows, directly, from characterizing a certain normative order as “law”. This is an almost necessary consequence of the criteria used. If the criterion is that of an outside observer (function, structure), then such a characterization may be helpful for the observer’s comparative or analytical projects, but it does not yield normative conclusions. If, on the other hand, the criterion focuses on the participant’s perspective, then it yields valuable insights on these participants’ perspective, but no criteria as to the implications of this perspective for other normative systems. Much legal pluralism is, in this sense, uncritical. This is not to say that there is not frequently a political project behind legal pluralism. Much of the old state legal pluralism was directed against the dictatorship of Western state law, first in the colonies, then in Western countries themselves. (Of course, at the same time much of it was used to justify colonial rule as tolerant towards non-state legal orders, orders which were often rather the artificial creation of local elites than actually valid norms.) Similarly, global legal pluralism rests on a politic of recognition99: multiple groups claim for recognition of their status, of their autonomy, and of their lawmaking capacity vis-à-vis the monopoly of the state. III.
Re-Stating Global Legal Pluralism: The Treatment of Non-State Law as
Non-Law So legal pluralism is about law, and about recognition. Is it therefore also about choice of law, and recognition of decisions? What is the connection between global legal pluralism and
conflict of laws? Indeed, conflict of laws is interesting because it provides a
97
Berman adds the criterion of jurispersuasion; see infra ___.
98
Twining, Post-Westphalian (supra n. ), 248 f.
99
Charles Taylor, The Politics of Recognition, in: Charles Taylor & Amy Gutman (eds.), Multiculturalism: Examining the Politics of Recognition, 25 (1994); reprinted in id., Philosophical Arguments, 225 (1995).
19
perspective that combines the outsider perspective with the participants’ normative interest in the question, a perspective for which the distinction of law and non-law is practically important. The question of whether the state, through conflict of laws, recognizes non-state law as “law” provides empirical material for the normative implications of legal pluralism relevant normatively. At the same time, choice of law provides us with the prime place of debate over the implications of legal pluralism. Can the state, with its institutions (in particular its courts) ignore the emerging non-state normative orders or must it, as Berman and Teubner seem to argue, eventually accommodate these orders as law? The answer is, in fact, yes and no at the same time. We will see that non-state normative orders are almost never the applicable law under a choice of law analysis. However, this does not mean that the state is blind for such orders. By not recognizing the normative orders of non-state communities as law, the state does not necessarily ignore these normative orders altogether. Totalitarian states may claim a normative monopoly; the liberal state claims no more than legal supremacy. The existence of other normative orders is not denied, but such orders are either non-legal, or they are subordinated to state law. They are reintegrated into the state, on other words, re-stated. In fact, there are different ways in which the state operationalizes other normative orders. I suggest a typology of three such ways100: incorporation, delegation, and deference. Incorporation is the transformation of non-state law into domestic law, deference is the transformation of non-state law into facts, and delegation is the transformation of non-state law into subordinated state law. Looking at all of these methods together is necessary to get a full picture.
100
For a comparable typology see Steven Schwarcz, Private Ordering, 97 Nw. U. L. Rev. 319, 324-9 (2002) (his own focus, however, is largely on delegation). Similarly, Berman treats these three different types of interaction (though he does not distinguish between them), see his Globalization of Jurisdiction (supra n. ), 505 (“official legal actors may delegate lawmaking authority to nonstate entitities” – delegation – “or recognize the efficacy of non-state norms” – recognition), 506 (“the norms [particular bounded communities] articulate often seep into the decisions of state legal institutions” – incorporation)
20
A.
Rejection – The Restriction of applicable law to state law
In a narrow view, it may seem that the state rejects global legal pluralism. Almost exclusively, the state, through its choice of law regime, rejects any claim by non-state laws to be treated as law. Insofar, global legal pluralism is rejected101. Thus, the ongoing debate about the character of the new law merchant as “law” has not, it seems, led any national court to apply this new law merchant as law102. If several scholars make claims to the contrary, they confound application of law and enforcement of arbitral awards. True, courts have sometimes declared arbitral awards enforceable, when these were based on the application of lex mercatoria. Proponents of the new law merchant often point to such decisions to prove that state courts now recognize law merchant as law. Yet this argument rests on a confusion between choice of law and the recognition of arbitral awards103. States recognize, and enforce, arbitral awards without allowing for relitigation on the merits. In particular, the enforcing court will not second-guess whether the arbitrator applied the correct law in a choice of law analysis. Even arbitral awards based not on the application of any law, but given “ex aequo et bono” are enforced104. In other words, the arbitral award is enforced regardless of the law that was applied. This is the opposite of an explicit endorsement of the applied normative order as “law”. The situation is similar for another non-state normative order, Islamic law, Shari’a. To the extent that Islamic law has been codified, as law of a country, it becomes applicable if that country’s law is applicable. But Islamic Law as non-state law remains outside the choice of applicable laws from the viewpoint of state conflict of laws. A recent English
101
A classical text on the treatment of non-Western law in conflict of laws is R.D. Kollewijn, Conflicts of Western and Non-Western Law, 4 Int’l L. Q. 307 (1951), reprinted in id., Intergentiel Recht 214 (1955).
102
E.g. Shamil Bank of Bahrain v. Beximco Pharmaceuticals Limited and Others (High Court, Q.B., 2003), no. 37, [2003] EWHC 2118, 2003 WL 22187542: “The lex mercatoria, or general law of merchants … is not the law of a country which is capable of ascertainment by expert evidence from practitioners in the country.”
103
See already Michaels, Privatautonomie und Privatkodifikation, 62 Rabels Zeitschrift 580 (1998) at 620.
104
See also UNCITRAL Model Law on International Commercial Arbitration, Art. 28(3), available at http://www.uncitral.org/english/texts/arbitration/ml-arb.htm.
21
case shows this neatly105. Parties to a contract on Islamic Banking had agreed that English law was applicable, but that the contract had to be interpreted according to principles of Islamic law. The judge held that, under the applicable Rome Convention on the Law Applicable to Contractual Obligations, a contract could not in its entirety be subject to more than one law, and that Shari’a was not a law that could be chosen as applicable law under the Convention106. In other words – regardless of whether or not Shari’a w as “law” in a general sense, it was not law in the sense of conflict of laws. Exceptions are notable largely because they are so rare. A proposal for the InterAmerican Convention on the law applicable to international contracts (1994) would have enabled parties to select non-state law if it came in a codified form107, first and foremost the UNIDROIT Principles of International Commercial Contracts108. The proposed provision was not adopted109, and whether the Principles would be applicable under the current text appears doubtful110 but largely irrelevant, as only Mexico and Venezuela have ratified the Convention111. More recently, the European Commission, in its Green Paper on the law applicable to contractual obligations, asked interested parties, amongst others, whether parties should be able to select non-state law like lex mercatoria or the
105
Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd and Others, [2004] EWCA Civ. 19; [2004] 1 WLR 1784 (Court of Appeal)
106
See already Kilian Bälz, Islamic Law as Governing Law under the Rome Convention. Universalist Lex Mercatoria v. Regional Unification of Law, 6 Unif. L. Rev. 37 (2001).
107
“If the parties have not selected the applicable law, or if this election proves ineffective, the contract shall be governed by the general principles of international commercial law accepted by international organizations”, quoted after Fritz Juenger, The Inter-American Convenion on the Law Applicable to International Contracts: Some Highlights and Comparisons, 42 Am. J. Comp. L. 383, 391 (1994); for a slightly different proposal see Veytia, The Requirements of Justice and Equity in Contracts, 69 Tul. L. Rev. 1191, 1194 (1994/95).
108
UNIDROIT Principles of International Commercial Contracts (1994, 2d ed. 2004), text available at http://www.unidroit.org/english/principles/contracts/main.htm.
109
For the final text of the convention see 33 I.L.M. 732 (1994); 1994-95 Unif. L. Rev. 188. For further references see Michaels, Privatautonomie (supra n. ) 594 f.
110
For analysis see Santos Belandro, El derecho applicable a los contratos internacionales, 69-74 (1996). See also Juenger, Contract Choice of Law in the Americas, 45 Am. J. Comp. L. 195, 204205 (1997 (arguing that the final version of the Convention allows for the choice of the UNIDROIT Principles). Juenger, as a member of the US delegation, had been the strongest proponent of applicability.
111
See the list of signatory countries at http://www.oas.org/juridico/english/Sigs/b-56.html.
22
UNIDROIT Principles as the applicable law to their contracts112. While some respondents, notably mostly scholars113, were in favor114, no decision has been taken yet, and it appears rather doubtful whether such applicability will be admitted. The situation is different within states. Non-state law is recognized and applied as law within certain countries. For example, India has five different laws of marriage: Hindu, Muslim, Parsee, Christian and Jewish. Which of the laws applies to any given marriage depends on the allegiance of the spouses, a true interpersonal conflicts rule based on community affiliation. In other words, the old kind of legal pluralism, state pluralism, does find its recognition in the conflict of laws. Such rules are indeed the closest to a system of conflict of laws that recognizes the norm-making power of non-state communities. At the same time, they reflect exactly the situation of the old state legal pluralism, which the new legal pluralism tries to overcome. This system only applies within states, as a kind of non-territorial federalism. If a foreign conflict of laws regime wants to determine the validity of a marriage between two Indian Muslims, it will not directly designate their Muslim law to apply, but rather designates Indian law as applicable, which in turn designates Indian Muslim law. From the outside, all non-state law is therefore mediated by the state.
112
Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernization, (2002) COM 654 final, sec. 3.2.3, p. 22-23, available at http://europa.eu.int/eurlex/en/com/gpr/2002/com2002_0654en01.pdf.
113
Of course, it is not surprising that scholars would support an approach to law that diminishes the monopoly of the state, and therefore has the potential of enhancing scholarly impact on the law. See, Martijn W. Hesselink (2002) "The Politics of European Contract Law: Who has an Interest in What Kind of Contract Law for Europe?", Global Jurist Frontiers: Vol. 2: No. 1, Article 3, http://www.bepress.com/gj/frontiers/vol2/iss1/art3, p. 2-3; also in Martijn Hesselink, The New European Private Law, 163, 164 f. (2002).
114
See, e.g., Stellungnahme des Max-Planck-Instituts für ausländisches und internationales Privatrecht: Comments on the European Commission's Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernization, 68 RabelsZ 1, 32-33 (2004). Most responses are available at http://europa.eu.int/comm/justice_home/news/consulting_public/rome_i/news_summary_rome1_e n.htm..
23
B.
Incorporation – the Transformation of non-State Law into State Law
The first way in which state law operationalizes non-state law is incorporation. Law merchant may serve as a good example of incorporation, both in its historic and its new fashion. Law merchant – whether it existed as a law or just consisted of special customs – was able, for some time, to retain its identity because of two important factors, one institutional, the other substantive. Institutionally, the law merchant was administered by special courts. Substantively, the principles applied by these courts were often superior to the English common law – because law merchant was informed by the needs of commerce, but also because it was more international in its bases, having adopted elements from Continental civil law, which in turn had gotten rid of many of the formalities that still riddled the common law. The common law reacted by incorporation. Institutionally, common law courts adopted jurisdiction over law merchant. And substantively, common law courts incorporated large parts of law merchant into the common law, and thereby avoided the competition. For example, Bewes’ book on lex mercatoria was, in its 6th edition, revised and enlarged by none other than Joseph Chitty, who later set out to write what is now the standard book on English contract law115. Similarly, Karl Llewellyn’s draft for the UCC took its inspiration in no small part from the medieval law merchant116, in part directly, in part indirectly through adaptation of the German Commercial Code which in turn had been inspired by commercial practices and Levin Goldschmidt’s ideas about “immanent law”117. What looks to its proponents, therefore, as an acknowledgement of the autonomy of law merchant, could equally well be viewed as colonization, enslavement118. Eugen Ehrlich’s insight that the production of law mainly happens on the periphery, within society, is
115
H.H. Beale, Chitty on Contracts (29th ed., 2004). The first edition was Joseph Chitty, A treatise on the laws of commerce and manufactures, and the contracts relating thereto (London, 1820).
116
U.C.C. § 2-104 comment 2; cf. Ingrid Michelsen Hillinger, The Article 2 Merchant Rules: Karl Llewellyn’s Attempt to Achieve the Good, the True, the Beautiful in Commercial Law, 73 Geo. L. J. 1141, 1148-1151 (1984).
117
Cf. James Whitman, Commercial Law and the American Volk: A Note on Llewellyn's German Sources for the Uniform Commercial Code, 97 Yale L.J. 156 (1987).
118
I borrow the term from Teubner, De Collisione Discursuum, 17 Cardozo L. Rev. 901, 911-913 (1996).
24
acknowledged. Yet the state is able to domesticate this potentially subversive development through integration of the norms that are thus created. The state recognizes non-state normative orders as law-generating, but it denies them their status as autonomous law. Quite the contrary, by incorporating these norms into state law, the state reiterates its own monopoly on the production of legal norms. By turning implicit law into made law, to use Lon Fuller’s dichotomy119, the state can add substance to its otherwise thin and abstract norms120, but it denies implicit law its independent existence. Norms of law merchant, from this perspective, are law only insofar as they cease to be elements of law merchant, insofar as they become part of the law of the state. C.
Deference - the Transformation of Non-State Law into Facts
Incorporation alone would be insufficient; the state is unable to run all relevant non-state norms through its own formalized process of legislation. A second operationalization of non-state norms, again outside of conflict of laws, is deference to such norms as the basis of private transactions121, private ordering. Such deference does recognize the normative autonomy of communities (and even of non-communities), and protects them from state regulation and interference by granting them a private space. At the same time, it denigrates the norms created by these communities to the status of “facts”, which, as such, enter the legal analysis122. For example, the state may leave it to commercial practices and professional standards to develop the appropriate standard of care, the typical expectations necessary for interpreting contracts, etc. This is the approach most frequently seen as an answer to Ehrlich’s “living law”. Again, living law is not ignored by the law of the state, but neither is it recognized as law. The state and its law do not conceptualize their relation to such spaces of private ordering as a relation to foreign laws, to be handled by rules of conflict of laws. Rather, the state refrains from interfering,
119
Lon Fuller, Anatomy of the Law, 67 ff. (1968); cf. Gerald Postema, Implicit Law, 13 L. & Phil. 361 (1994), reprinted in Rediscovering Fuller: Essays on Implicit Law and Institutional Design, 253 (W. van der Burg and W. Witteveen, eds., 1999).
120
Fuller, ibid., 91-110.
121
Cf. Gunther Teubner, De Collisione Discursuum: Communicative Rationalities in Law, Morality, and Politics, 17 Cardozo L. Rev. 901, 918 (1996). Teubner, however, speaks of “externalization”.
122
Cf. Niklas Luhmann, Das Recht der Gesellschaft, 86-88 (1993) .
25
or, put differently, it defers to the private interactions of individuals. The whole public / private distinction, as we know well by know, takes place within the framework of the state’s law. Private ordering enters the substantive law of the state at the time of enforcement as fact – as customs, general expectations, etc., that must be taken into account in the application of the state’s laws, but that do not constitute such norms in themselves. Far from being irrelevant, the distinction between law and fact is crucial here. If these practices were recognized as law, and designated as applicable law through a choice of law process, then they would be on an equal footing with the state’s own law. The state would apply them out of respect for the sovereignty of the norm-creating community, and perhaps in the hope that this community would in turn be willing to apply the state’s laws as well. If on the other hand these practices are recognized (only) as facts, they are subordinated to the state’s laws, they fill the space left open by the state. The decision to open such a space does not follow from the community’s own sovereignty, but rather from the state’s own assessment that leaving a space of liberty is appropriate. The state does not assume the need of reciprocity, comity, between state and and non-state communities. Because the state holds the monopoly of force, there is no doubt that nonstate communities must “apply” the state’s norms, so there is no need, legally speaking, to offer these communities a quid pro quo.
D.
Delegation – the Transformation of non-State Law into Subordinated
Law Incorporation and deference deny non-state normative orders the role of autonomus legality. Incorporation strips such orders of their autonomy by translating them into the state’s own law, deference strips them of their legality, by treating them as facts. A third operation, somewhat similar to deference, treats such orders as legal orders separate from the state’s own law, but still denies them full autonomy. This process can be called delegation. Instead of regulating on its own, the state defers to the self-regulation by interested groups.
26
Examples of delegation abound. Autonomous labor agreements between unions and employers have the force of law; codes of conduct of regulated or unregulated industries substitute possible regulation by the state, etc. We could even name contracts as delegated law, as the French Civil Code does (at least nominally) in its famous Art. 1134123. Indeed, this idea of the contract was one basis for the idea of the new law merchant (“contrat sans loi”). Yet while French law seems, on the one hand, most open to recognizing the factual law-making power of non-state actors through private autonomy124, French authors have at the same time traditionally been most absolute in their emphasis that the binding force of the contract rests entirely on the state and its laws125. Parties may enter into contracts, but these are only enforceable because the state, through its substantive private law, explicitly defers to them. The recognition of the contract as “law between the parties” implies denying them the status of law beyond their bilateral relation. In all these situations therefore , non-state communities produce their own rules and the state acknowledges them as law, but only as law that is subordinated to state law. It is irrelevant for delegated norms whether they come into being independently from state delegation, or whether they are created in response to delegation126. Entities may well have created norms prior to, or independently of, any delegation by the state; the state’s delegation is frequently not more than the operationalization of a fait accompli. This does not change the nature of delegation, or the subordination of these norms under those of the state, from the viewpoint of the state. The point is that, from the position of the state, these norms acquire the status of “law” in the very moment in which they are attached and subordinated to the state and its law. Again, like with incorporation, the moment these norms are recognized as “law”, they lose their autonomous status, though not as fully as in the case of incorporation. Non-state law turns into sub-state law.
123
Agreements legally formed take the place of law for those who make them.
124
Goldman (supra n. ).
125
Pothier, Traité des Traité des obligations, no. 2 (1761/1829).
126
Somewhat surprisingly, this point is granted by Johnson & Post (supra n. ), 1394 n. 82. Arguably, to the extent that they conceive of internet law as result of state delegation, they undermine their claim for the internet’s autonomy.
27
E. The State’s Legal Monopoly as Self-Immunization We can see now that, from the state’s point of view, only state law is autonomous law. The norms of non-state communities become law through incorporation, become relevant for law as facts through deference, or become subordinated law through delegation, but are rejected the status of autonomous law. Through this array of different operations, the state maintains its own legal monopoly. Nothing is law, unless it is recognized as such by the state. It is important to understand what this law-making monopoly does not imply. First, the distinction between law and non-law does not rest on an assumed natural priority of the state over other communities; the monopoly does not exist in some objective way, as seen by a neutral observer. Such an assumption would obviously be historically erroneous, and factually doubtful today. Non-state communities with their own normative orders exist prior to and independent from the state. The point is not that, in some abstract / universal way, such normative orders really “are” secondary to the state, or that they really “are” only facts. The point is, rather, that the state conceptualizes them as such; they are secondary normative orders, or just facts, from the perspective of the state and its law, with regard to the state. A neutral observer is likely to observe the global legal pluralism described above, with both state and non-state laws. The state on the other hand is able to see other normative orders as non-law. Second, as we have seen, legal monopoly is not the same as legal exclusivity. Just because the state law does not recognize non-state orders as law, this does not mean that its law is immune to the influence of these orders, cannot be “responsive law”127. In fact, the opposite is true. Law is responsive precisely because it has ways to deal with these influences. Incorporation is a direct reaction (through translation) to non-state normativity. Delegation will be granted only if and because state law is convinced that non-state community self-regulation is superior, typically in reaction to the community’s request to be allowed to regulate itself. Deference, finally, is the acknowledgement that regulation through state law is contingent on facts, including facts that individuals can determine. In short, the state is able to deny non-state normative orders the status of
127
Philippe Nonet & Phillip Selznick, Law in Transition (1978, 2001).
28
“law” precisely because it has other ways to deal with them. By transforming non-state norms into facts, the state can maintain its law-making monopoly without having to interfere with these norms themselves. This is important in order to understand a third idea that is not implied with this lawmaking monopoly – the false illusion that the state could have unlimited factual power to regulate all transactions. We know from the discussion about globalization (if we did not know it before) that this is untrue, that non-state communities have actual powers that are sometimes equal, sometimes even superior to those of the state. In fact, the array of operations sketched above may well be regarded as a sign not of strength but of weakness for the state: Because the state cannot avoid the creation and enforcement of non-state norms, it must find ways to accommodate them. Here the point is that the state can only hope to maintain its legitimacy, and the legitimacy of its lawmaking monopoly, if it gives these non-state communities sufficient space for the development and enforcement of their own norms. Connected to this is a parallel observation: Treating non-state normative orders as law does not necessarily give them a greater practical importance than incorporation, deference, or delegation. Or, put the other way around, contrary to what some argue128, legal pluralism does not necessarily imply greater autonomy of non-state communities vis-à-vis the state. The different treatment of law and non-law is a difference of form, not of substance. States may well treat foreign laws as law in the conflict of laws but widely deny them applicability – either because the specific approach to conflict of laws contains a strong preference for the laws of the forum, or because it uses a far-reaching public policy exception against foreign law. On the other hand, a liberal state may well give large deference and delegation to non-state normative orders, enabling non-state communities to regulate their own affairs largely without interventions. All of this leads to a final important point. Nothing in what has been said so far is meant to justify this practice of the state in any way. We may well think that the state’s selfimmunization is an undesirable response to the challenge of global legal pluralism, that
128
E.g. Jørgen Dalberg-Larsen, The Unity of Law: An Illusion? On Legal Pluralism in Theory and Practice, 168 f. (2000).
29
the state’s attempt to maintain its legitimacy is a failure. But we should see that, from the view of the state, this may be the only possible reaction that does not require a dramatic alteration of the state itself. This suggests that we should look at the reasons why the state reacts the way it does. I will do so in the next section. IV.
The Difference between State Law and non-State Normative Orders
A.
The Relativism of Choice of Law
Some seem to argue that a restriction of applicable law to state law is unjustified because non-state normative orders are also “law. Often, the argument is a functionalist one: because non-state normative orders are, functionally, laws as much as state law, the state must recognize them as such. For example Johnson’s and Post’s claim for a “jurisdiction” of the internet was based on a claim that, functionally, the internet was like a state territory. Fritz Juenger’s argument for applicability of law merchant bas grounded in the claim that law merchant was a law in all relevant respects. Insofar as the functionalist argument is meant as a necessary argument, it rests on a conceptual fallacy. It consists in a simple syllogism of the following kind: The law merchant is law, conflict of laws designates law to apply, thus conflict of laws must also, if the criteria are met (e.g. choice by the parties) designate law merchant as applicable law. This syllogism presupposes a uniform definition of the appropriate criterion for what counts as law in both premises. We have seen that even within legal pluralism different scholars propose different criteria already within legal pluralism. Moreover, legal pluralism, legal sociology and legal anthropology may well have different definitions of law, because they are interested in different aspects of law. Thus, for example law merchant can certainly be called “law” in one sense, from a sociological or an anthropological perspective. For a sociological, or anthropological, perspective it may (or may not) make sense to refer to all normative orders in communities as “law”. Yet this is not necessarily the legal perspective, intrinsic to operations of the legal system itself129. The claim that law merchant is “really” law must be rejected simply because there is no
129
Ralf Michaels, Privatautonomie und Privatkodifikation, 62 RabelsZ 580, 615 (1998); see already Hans Kelsen, Der soziologische und der juristische Rechtsbegriff (1922).
30
one reality here – because law is a social construct130, the definition of what law is depends on the criteria used, and these criteria can easily be different in different disciplines131. Even if we found indeed that non-state law should be considered “law” within legal theory, this would not mean that it must be law in the sense of conflict of laws132. Conflict of laws norms are part of the law of each individual state; absent treaties, the question of which law applies is determined, in the last instance, by the state. As a consequence, for the perspective of state choice of law, what qualifies as “law” is a question for state law to determine. This need to characterize concepts especially for choice of law is commonly known. For example, in order to determine whether a rule in a foreign law must be considered penal, barring its applicability under the so-called penal rule, courts are asked to determine whether the rule is “penal in the international sense”133. Similarly, determination of whether rules are substantive (and thus governed by the otherwise applicable law) or procedural (and thus governed by the law of the forum) is made with regard to the specific requirements of choice of law134. In the same way, a state is free to determine whether it will recognize non-state law as “law” or not. The question is not one of legal theory, but rather one of interpretation of the relevant conflict of laws rule. William Twining makes this point of relativity of position well (though not with the same purpose as here): “Indeed, the very existence of pluralism depends on standpoint: an English judge presented with an issue involving a potential clash between English and
130
Cf. Leopold Pospisil, Anthropology of Law: A Comparative Perspective, 39 (1971).
131
Cf. Franz von Benda-Beckmann, Who’s Afraid of Legal Pluralism?, 47 J. of Legal Pluralism 37, 39-42 (pointing out that different discourses may need different concepts, and that legal pluralism may not be helpful for judges).
132
Teubner’s point that “[t]he debate on lex mercatoria is one of the rare cases in which practical legal decision-making becomes directly dependent upon legal theory” (Global Bukowina, supra n. , ___), is inexact – legal theory and conflict of laws may well work with different notions of “law”. Teubner moderates the point later in the same article, p. ___: “Of course, legal theory cannot `bind' legal practices of lex mercatoria in their determination of what is legal and what is not.”
133
Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, ___ (1918).
134
Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of Laws, c. 6 (1942); Grant v. McAuliffe, 41 Cal.2d 859 (Sup. Ct. Cal. 1953).
31
Islamic principles may not even perceive or acknowledge that there is a conflict, let alone accept that Islamic law is valid “law” in this context, whereas a devout Muslim may believe that Islamic law trumps English law.135 Yet Twining’s formulation is psychological, it goes to different modes of thought between the “English judge” and the “devout Muslim”, instead of the different normative systems from whose standpoint the question must be answered. The English judge may well be a devout Muslim herself, and still not overcome the conflict. As (English) judge, she will have to hold that Shari’a is not law – not in a deeper sense, but simply in the positivistic sense of the Convention on the Law Applicable to Contractual Obligations136. As Muslim, on the other hand, she may recognize Muslim law as law, and even as a law higher than English law. But neither of the two is a global, universal position, and in this sense neither position is correct in the sense in which a scientific analysis may aim at being correct. This suggests that the difference in perspective exists not between different individuals, but rather between different reference systems. Importantly, these are not different substantive law reference systems (the everyday topic that conflict of laws deals with), but rather different conflict of laws reference systems – the one of state law vis-à-vis non-state law on the one hand, the one from non-state law vis-à-vis state law on the other. B.
The Special Treatment of Foreign State Law
We may ask of course whether the difference actually exists at all. Some have proposed that the conflict of laws, the treatment of foreign laws, does not function differently from the three operations I have just explained. We find all three operations – incorporation, deference, and delegation, in discussions about the nature of choice of law, as attempts to overcome the assumption that all foreign law must s imply be rejected, not because it is not “law”, but because it is foreign law. The idea of incorporation can be found both in the local law theory advocated by Walter Wheeler Cook, who argued that a judge always applies local law but in interstate cases this local law may replicate the content of foreign
135
Twining, Post-Westphalian Conception (supra n. ___), 250. Twining refers to Islamic Law as nonstate law, as opposed to the national codifications, or incorporations, of Shari’ah in various countries.
136
Shamil (supra n. ___).
32
law137, and in the theory of naturalization proposed by the Italian scholar Roberto Ago, for whom the state creates special substantive norms for international cases, and these special norms naturalize (incorporate) foreign legal norms138. Likewise, the concept of deference exists in the conflict of laws: Foreign law is still sometimes regarded as “fact”. This is frequently claimed for its status for purposes of evidence (although this may well rest on a misunderstanding of the relation between fact and law)139. At the same tine there are theories that more narrowly also for the treatment of foreign law in general, most notably in Ehrenzweig’s idea to treat foreign law as “datum” in a judicial decision140. And finally, while there is no explicit theory of delegation as basis of conflict of laws, we could well regard the functioning of the traditional choice of law rule as such: Foreign law would only be “law” if and to the extent that domestic law, through its choice of law rules, delegates law-making authority (vis-à-vis domestic courts) to the foreign lawmaker; the choice of law rule would function as a quasi-Hartian rule of recognition. Yet we should realize that all of these theories had fairly little influence on theory and practice of conflict of laws. Generally, foreign law is applied as law, and if it is not applied, the reason is not that it is not “law”, but rather that it is not the applicable law. In other words, while it would be possible to conceptualize the application of foreign law as incorporation, deference, or delegation, this is not the normal conceptualization. The underlying assumption is that the quality of foreign state law as law neither depends on, nor commands, its applicablility. C.
Jurispersuasion and the State
This leads to a puzzle. If indeed the state claims legal supremacy, then it may seem surprising that it treats any normative order other than its own as “law” at all. However, this is exactly what happens, at least according to traditional understanding, in the choice of law process with foreign laws. Why, if the state claims a legal monopoly, are foreign
137
The Logical and Legal Bases of Conflict of Laws,
138
Roberto Ago, Règles générales des conflits de lois, 1936-IV Rec. des Cours 302-308.
139
See Nils Jansen & Ralf Michaels, Die Auslegung und Fortbildung ausländischen Rechts, 116 Zeitschrift für Zivilprozeß 3, 13 ff. (2003)
140
For analysis see Eugene Scoles et al., Conflict of Laws, no. 2.10, pp. 38-43 (4th ed. 2004).
33
state laws treated as laws in the conflict of laws process, while non-state normative orders are not? Why does the state use the instruments of incorporation, deference, and delegation towards non-state normative orders, but not towards foreign law? It is not enough to find that, for choice of law purposes, the question whether non-state normative orders are “law” must be answered from the position of the state and its conflict of laws norms. This does not answer why the state uses a formal criterion like “state-based” to distinguish law from other normative orders. After all, the general development of law in the 20th century has been a development away from formalism. Especially the discipline of conflict of laws, at least in the United States, has moved away from the rigorous formalism of the First Restatement and has adopted an openly functionalist approach (although formalism still plays a more dominant role in conflict of laws than is usually acknowledged). Why then is this functional approach universally not extended to the question of what normative orders can be recognized as “law”? Why do we not find some states that do, and some states that do not, recognize non-state orders as “law”? Legal pluralists argue that the state should be willing, at least prima facie, to enforce decisions and laws of such communities, just as the state already enforces decisions of foreign states’ courts and laws of foreign states as countries141. We have seen that such application does not follow automatically from the nature of “law”, because what matters for choice of law is not a (futile) ontological definition of law, but rather the determination of law from the perspective of the state and its choice of law norms. This makes it plausible to develop a discursive criterion for the determination of law. Berman develops such a criterion and calls it jurispersuasion142: His argument is that communities that want their norms, their decisions, to be enforced by states (even if these norms diverge from those of the states) must convince the states of their status as autonomous,
141
Cf. Berman, Globalization of Jurisdiction (supra n. ), 511 f.; id., Law and Globalization (supra n. ), 534.
142
Paul Schiff Berman, From International Law to Law and Globalization, 43 Colum J. Transnat’l L. 485, 533-540 (2005). Jurispersuasion is reminiscent, as a concept, of the “new sovereignty” introduced by Abram and Antonia Chayes as the “connection to the rest of the world and the ability to be a political actor in it.” See Chayes & Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, 26 (1995).
34
law-creating communities. Thus, the argument for recognizing non-state law is definitional –non-state normative orders are “law” – but only in part. In addition, the argument is discursive – non-state law is “law” because and insofar as it can convince the state that it is. But why should states be convinced? Do states have a “governmental interest” in such an application? While not addressing this question directly, Berman makes arguments for a multilateral approach to choice of law between state laws that could easily, one may think, be translated into the context of legal pluralism. States, he argues, are interested in taking part in a global community: “[A] cosmopolitan approach is firmly grounded in an expanded notion of governmental interests. Indeed, as courts consider multiple community affiliations and develop hybrid rules for resolving multistate disputes, they do so not because they are ignoring the policy choices of their home state, but because they are effectuating their state’s broader interest in taking part in a global community. Thus, a cosmopolitan approach is ultimately moored to an expanded conception of how governments must operate in an interconnected world”143 Now if, what would seem plausible, this global community, this interconnected world, is made up of both states and non-state communities, one might well argue that participants in this global community must be ready to apply the norms made by non-state communities, too. The argument is intriguing, but it would presuppose that states have an interest in the recognition of non-state normative orders as law, and this may be unlikely. First, the state’s interest in taking part in a global community may not translate easily from a world of states and their laws to a world of global legal pluralism. Berman uses a popular argument against the idea that it is always in a state’s interest to apply its own
143
Berman, Cosmopolitan Vision (supra n ) 1864-65; cf. ibid. 1867 (“the long-term interests that states have in being part of an interlocking world order”), 1880-81 (“conflicts rules based on parochial preferences for forum law are apt to turn into legal imperialism unless one’s idea of a government’s self-interest is expanded to include an interest in being a cooperating member of the global community… Because states are inevitably embedded in an international system, they internalize the aspirations and disciplining norms of that international system and have an important interest in being a cooperative member of a global community.)
35
law144: All states will be better off, so this argument goes, if they are occasionally willing to defer to each other’s law. This is indeed an argument for a more multilateral approach to the conflict of laws, insofar as it relates to states145, but it is not an argument for the relation between states and non-states. States, the “community of nations”, have a collective interest in maintaining their cartel of law-making and law administration, and of not admitting outsiders into their cartel. Multilateralism, positive comity, reciprocal deference, all of these represent enlightened governmental interests of each state precisely because they empower states vis-à-vis non-states. It may not be a coincidence that we see more and more “positive comity” between governmental entities146 without states giving up power to non-state communities. Multilateralism is indeed brought about by globalization, but it may be a reaction against, not an adoption of, globalization and legal pluralism, it may be the states’ collective attempt to fight off the challenges from non-state communities. A similar point can be made with regard to jurispersuasion. It is possible to argue that non-communities must be allowed to convince states of their status as communities, just as foreign nations must somehow convince the state in which enforcement is sought that they were entitled to assert jurisdiction, in general, or in particular. Yet the test applied in traditional US conflict of laws may show why non-state communities face a hard time succeeding in such jurispersuasion. Normally, judgments from foreign nations are enforceable in US courts, without relitigation of the merits, but they are not enforced if the foreign court did not have jurisdiction147. Whether the foreign court had jurisdiction is
144
Berman, Cosmopolitan Vision (supra n. ) 1850-51. For a parallel argument from international relations see Robert Keohane, After Hegemony (1984). It should be noted that Brainerd Currie’s claim was not that it was always better for states to apply their own law. His argument was, in a nutshell, that a judge always had to apply forum law if thereby the policies of that law could be furthered, which he explained as the forum having an interest in the application of its own law. The reason for this application was not, however, a balanced interest of the state as a whole in application of forum rather than foreign law, but rather a separation of powers argument against judicial weighing of interests.
145
This is the main focus of Berman’s article on a Cosmopolitan Vision. See Berman, Cosmopolitan Vision (supra n. ), 1821 and passim. For this claim, however, the assumption that people are members of various overlapping communities (supra n. 76) seems irrelevant.
146
Annemarie Slaughter, A New World Order (2003).
147
Hilton v. Guyot, 159 U.S. 113 (1895).
36
Deleted: 72
determined not only by its own law (as a requirement for a valid judgment), but also according to standards of the enforcing court. The decision of a foreign court will not be recognized and enforced unless a US court, under similar circumstances, would have had jurisdiction as well. This means that foreign judgments based on exorbitant bases of jurisdiction, like the presence of assets unrelated to the litigation, or the nationality of the plaintiff148, will not be recognized. The reason is not, however, that these bases are “exorbitant” against any universal standard – this would be neither necessary (because no such universal standard exists149) nor sufficient. Rather, the reason is that these bases are “exorbitant” as against the standard of the enforcing country. States are willing to accept the “jurispersuasion” of foreign countries only if their claim to having jurisdiction is equivalent to the claim of the enforcing state, in a similar situation, to having jurisdiction. And now we see why jurispersuasion is at the same time already a part of state conflict of laws, and as such inapplicable to non-state communities. Foreign states have at least a prima facie claim to enforcement because their jurisdiction is, structurally, similar, to that of the enforcing state. Non-state communities on the other hand would not only have to argue that they are entitled as communities, with regard to a universal standard, to declare their own laws. Rather, they would have to argue that the jurisdiction they assert is, in its nature, similar to the assertion of jurisdiction by courts in the enforcing state. And because one criterion, from the state’s perspective, is that jurisdiction (as opposed to private ordering) exists only in the state, such an argument cannot succeed. The state accepts jurispersuasion only from other states. D. Living Law and State Positivism in Choice of Law What is it then about the state that makes the recognition of non-state law as law so difficult? In order to answer this question, it may help to ask one of the founding fathers of legal pluralism, Eugen Ehrlich – the same Ehrlich who was influential for Teubner’s
148
For a recent analysis and critique of exorbitant bases of jurisdiction in the United States and in France see Kevin M. Clermont & John R.B. Palmer, Exorbitant Jurisdiction, forthcoming in 58 Maine L. Rev. (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=793546.
149
Negotiations towards a Worldwide Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, trying to ban certain jurisdictional bases worldwide, have largely failed.
37
conception of legal pluralism. Shortly before publishing his treatise on legal sociology, at exactly the time when he was developing his ideas about the origin of law in society rather than in the state150, Ehrlich published an article, since forgotten, about conflict of laws151. This article, in its second half an enthusiastic review of Zitelmann’s book on private international law152, contains, in its first half, a history of private international laws from antiquity to Ehrlich’s own time. In the course of this history, Ehrlich accounts for tribal laws in Germanic times, when the applicable law was determined with reference to each individual’s tribal allegiance153 - an early example for non-state jurisdiction and its relevance in the conflict of laws. For his own time, however, Ehrlich did not propose to expand conflict of laws to non-state communities. He mentions “our modern conception, for which law is primarily an expression of the state’s will, and the judge an agent of the state” and continues: “This must of course affect private international law. Today, as a matter of course, only the state determines which law should apply in its boundaries. And the judge must no longer search for the law, which is enacted for the respective case; he must, as an agent of the state, apply the law that the state orders him to apply. If one speaks today of a national law, this is more and more not understood to mean the law of a people, as a community held together by origin, language, history and culture, but the law of a state, as a governmental organization resting on a specific territory, which can either extend over a number of peoples, or only comprehend parts or particles of a people. And this state now orders that everyone and everything which is situated in its territory be subject to its law; only what it cannot reach with all its instruments of power eludes
150
See Eugen Ehrlich, Soziologie und Jurisprudenz, 3 Österreichische Rechtszeitung 57 (1906); Ehrlich, Die freie Rechtsfindung, 5 Recht 35 (1906).
151
Eugen Ehrlich, Internationales Privatrecht, 126 Deutsche Rundschau 419 (1906).
152
Ernst Zitelmann, Internationales Privatrecht, 1897-1912. Zitelmann’s theory of private international law has recently been proposed as a model for conflict of laws in globalization, nfortunately without mention of Ehrlich’s article. See Thomas Decker, Das kollisionsrechtliche Werk Ernst Zitelmanns (1852-1923) – Ein Konzept für die zukünftige Gestaltung des Internationalen Privatrechts? (2004), available at http://elib.ub.uniosnabrueck.de/publications/diss/E-Diss381_thesis.pdf. Zitelmann and Ehrlich had both developed ideas of a world law; see Ehrlich, Die Zukunft des Römischen Rechtsunterrichts in Österreich, 6 Österreichische Rundschau 386 (1906); Ernst Zitelmann, Über die Möglichkeiten eines Weltrechts, 43 (1888/1916); both cited after Vogl (supra n. ), 117.
153
Guterman, The Principle of the Personality of Law in the Early Middle Ages: A Chapter in the Evolution of Western Legal Institutions and Ideas, 21 U. Miami L. Rev. 259 (1966).
38
its law in fact
154
. … The question of private international law is now exclusively this: which law
does the state order to apply in each individual case.”155
The quote reveals a stark contrast to Ehrlich’s own idea of a “living law”. Apparently, Ehrlich postulates the “living law” born within communities only as a concept for legal sociology and as a source of inspiration for the judge in domestic cases, not for private international law. Of course, one may argue that Ehrlich is only paying homage to the thinking of his time – once “living law” is recognized to be the law, he might argue for a change of conflict of laws rules. But this is not so certain. Ehrlich makes clear that there is a connection between where conflict of law rules originate on the one hand and what counts as law on the other, between the designating and the designated normative system. “[W]hat matters for today’s private international law are the concepts of law and state that govern today156”. Because the state has the monopoly on the creation of conflict of laws norms, it has the monopoly on the creation of substantive law norms, and vice versa. The state uses its monopoly of choice of law rules to order the application of only state law, because the state has the exclusive power to make laws – not in a sociological sense, but in the understanding of the state that sets these rules. What is so special about the state for conflict of laws? Is the state not just one among many types of communities? Is the state somehow more real than other associations? Does it have more legitimacy? In one way the obvious answer is no. The state is an
154
Ehrlich, Internationales Privatrecht (supra n. _), 425. (“Das muß selbstverständlich auch auf das internationale Privatrecht zurückwirken. Jetzt ist es selbstverständlich nur der Staat, der bestimmt, welches Recht in seinen Gemarkungen gelten solle. Und der Richter hat nicht mehr nach dem Rechte zu suchen, das für den in Betracht kommenden Fall gegeben ist; er hat, ein Beauftragter des Staates, das Recht anzuwenden, das der Staat ihm anzuwenden befiehlt. Wenn jetzt von einem nationalen Recht die Rede ist, so versteht man darunter immer mehr nicht das Recht eines Volks, als einer durch Abkunft, Sprache, Geschichte und Kultur verbundenen Gemeinschaft, sondern das Recht eines Staates, als einer auf einem bestimmten Gebiet ruhenden Herrschaftsorganisation, die sich sowohl über eine Mehrheit von Völkern erstrecken, als auch nur Teile oder Teilchen eines Volks umfassen kann. Und dieser Staat spricht es nun an, daß jeder und alles, was sich auf seinem Gebiete befindet, sich seinem Rechte unterwerfe; seinem Recht ist an sich nur das entzogen, worauf er mit all seinen Machtmitteln nicht greifen kann.”)
155
Ibid. 426 (“Die internationale privatrechtliche Frage löt sich also jetzt ganz in die Frage auf: welches Recht befiehlt der Staat in jedem einzelnen Falle anzuwenden.”)
156
Ibid. 431 (“Aber für das heutige internationale Privatrecht kommt es auf die Vorstellungen an, die heute über Staat und Recht herrschen…”), emphases in original
39
“imagined community” like other imagined communities157. There is nothing natural about the state – the state, at least in its modern form, is the fruit of a certain time, and it may decline again158. Proponents of legal pluralism have taken this as an argument against confining the title law to state law. Once the state itself is gone as the formal criterion to distinguish law from non-law, no other criterion seems to do the job. If the state is not special, then we might argue, neither is its normative order, state law. If we want to think of law as something not contingent on a specific kind of community, then there seems to be no reason to bind it to the state. In another way, however, the answer is not so easy to give. First, it is not enough to grant that the state, as its own imagined community, is as real as other communities159. Once we move from hard facts or external observations to imagination, we cannot stop, arbitrarily, at the thin criterion of “community” that state and non-state share. Imagination not only creates states and non-states as communities. Imagination also creates the special role that the state adopts amongst all these various communities. As Rosenberg puts it: “The apparent correspondence of ideas of empty space and time to the properties of a pre-social natural universe does not change the fact that those ideas too are ‘full’ of social and cultural determinations.160” In this sense, the exclusivity of the state (as the only relevant community) is likewise real (if only as a social construct) and must therefore be taken seriously161 - not as acknowledgement that the state “is still a particularly powerful imagined community and one that generates real feelings of loyalty and attachment”162, but as acknowledgement that people frequently imagine it as the only community entitled to make law. Once we do not look at objective criteria for the definition of the state, but rather at peoples’ perceptions, then people’s perception that the
157
Berman, Jurisdiction (supra n. ), 320, 462-472, citing to Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (rev. ed. 1991).
158
Martin van Creveld, The Rise and Decline of the State (1999).
159
Berman, Globalization of Jurisdiction (supra n. ), 451 f., 457 f., 496.
160
Justin Rosenberg, The Follies of Globalisation Theory, 6 (2000).
161
Cf. Santos, Common Sense, 438: “In a polycentric legal world, the centrality of the state law, though increasingly shaken, is still a decisive political factor. But above all, it is reproduced by multiple mechanisms of acculturation and socialization.”
162
Berman, Globalization of Jurisdiction (supra n. ), 496
40
state, among the various communities to which they belong, has a special role, becomes relevant for our assessment of its role, too. In this context it is again important to see that recognizing the law-making power of other states does not weaken the state’s position, but strengthens it. The mutual recognition between states, the mutual enforcement of each other’s laws, enables states more fully to stand above individual parties and non-state communities. Through conflict of laws, states mutually constitute each other as law-makers. The reciprocity between the state and the individual and communities on the other hand is, necessarily, a different one, not one of delimitation of spaces to engage in structurally similar activities (legislation, enforcement, adjudication), but one of different activities, of functional instead of segmentary differentiation. While we may similarly say that state and society mutually constitute each other, they constitute each other as state and society respectively, not as lawmakers. A state’s obligation in recognizing non-state law as law would therefore have to come from a reference system external to a state, from a universalistic position. Indeed, Berman at times seems to adopt such a position. He considers at one point a natural law of jurisdiction163, argues elsewhere that “[w]e could adopt a choice-of-law rule that takes the perspective not of an individual state but of the entire global legal system, and then try to resolve the choice-of-law question”164, and posits, somewhat later, that not all governmental interests may be legitimate from Currie’s perspective of governmental interest analysis165. These are arguments from a universalistic perspective. Similarly, Fischer-Lescano and Teubner, in postulating “a form of conflicts law that is not based on the determination of one territorial law which has the closest relation to the conflict, but
163
While Berman considers such an idea – Berman, Globalization of Jurisdiction (supra n. ) 493, drawing on Cover, Nomos and Narrative (supra n. ), 58 (“natural law of jurisdiction”) – he does not seem to rest his argument on it.
164
Berman, Cosmopolitan Vision (supra n. ), 1851.
165
Ibid. at 1852.
41
which seeks instead to identify the functional regime to which the legal issue in question belongs”166 seem to take such a universalistic position. From the state’s perspective, both claims will likely be rejected. The perspective of conflict of laws, once it had overcome its grounding in international law, is the perspective of an individual state, not that of the entire global legal system (which, from a legal pluralism perspective, would have to be the entire world society). And from the state’s perspective, all interests are legitimate from a governmental interest analysis, because the state has no other standard of legitimacy. Even Anne-Marie Slaughter, otherwise a strong proponent of cosmopolitanism, admits that “[i]t is still a leap, however, from the point that U.S. government representatives, in every branch, must take account of international events, trends, and interests to represent their constituents adequately to the argument that they should also see themselves as representing a larger transnational or even global constituency”167. From a global perspective we may see a (sociological) “conflict of laws” that has the characteristics Berman and Fischer Lescano & Teubner ascribe to it. From the perspective of the state as master over conflict of laws norms, this is by no means necessarily the case. While states could thus, in theory, accept non-state law as “law” through a conflict of laws process, they are, for political reasons, unlikely to do so. Instead, states are, by their very nature, likely to do what we see them doing, namely to incorporate, defer to, delegate, or reject non-state normative orders, but not to accept them as law. We may consider this narrow-minded or blind. But we should see that this blindness is the consequence of an almost necessary blind spot in the conception of the state. The state maintains its ability to decide conflicts between diverging factions only insofar as it can transcend these factions, insofar as it ignores different communities’ claims for normative authority, and reduces their jurisdictional claims to mere positions of parties before the law. If the state were to treat all communities as its equals, it could no longer assume this
166
Fischer-Lescano & Teubner (supra n. ), 1021.
167
Anne-Marie Slaughter, A New World Order, 233 f. (2003). Slaughter justifies the leap with the suggestion that it is necessary “to avoid global government” (ibid. 234 f.), but world government and cosmopolitanism are hardly the two only possible developments.
42
transcendent position over them. Just as states cannot be judges over other states in international law, so states could no longer be judges over non-state communities. When all positions become communities168, substantive law turns completely into conflict of laws; legal pluralism would lead to the end of (substantive) law as we know it. V. Pluralisation of the State We have, through a quite elaborate argument, found a reason why the state does not normally recognize non-state normative orders as law. The state cannot recognize nonstate law as law and at the same time maintain its own conceptualization. The normative order designated by the choice of law rules is always, it turns out, a reflection of the normative order encompassing the choice of law rules. Foreign state laws can be applicable laws because they are structurally similar to the state’s own laws; other normative orders cannot without creating a reconceptualization of the state itself. States may not be interested in such a development. But the state is only a social construct; if we assign interests to it, we speak metaphorically. The real question is not, of course, what the state wants, but what we as world community want. In order to answer this, we have to move away from a descriptive to a normative perspective; we have to ask whether a pluralisation of the state is desirable. This cannot be done here. But we can at least speculate on what would happen if the state accepted the challenge from pluralism? A. The Proliferation of Conflicts A first consequence would be the proliferation of conflicts of laws. Legal pluralism does not only lead to a bilateral conflict between the state and non-state law, but also to conflicts between different non-state orders. A pluralist concept of conflict of laws will therefore lead to more, not less, conflicts. Take for example the famous Yahoo case, or rather set of cases, in which a French court ordered Yahoo to make offers for Nazi
168
Cf. Melissaris (supra n. ), 75: “Only when the legal commitment of clubbers who queue patiently at a bouncer’s orders is treated as seriously as the legal commitment of communities with religious or other moral bonds will the pluralistic study of the law be able to move away from the essentially positivistic external study of groups to the study of legal discourses.”
43
paraphernalia on its auction site unavailable to users in France, and Yahoo subsequently got a Californian court to issue a declaratory judgment, holding that the judgment was unenforceable in California169. Berman argues, convincingly, that the French assertion of jurisdiction may well have been justified, and that there would have been reasons for a US court to recognize the French decision170. If Americans criticize the French assertion of jurisdiction as extraterritorial, they ignore that denying the French jurisdiction leads to a similarly extraterritorial application, in this case of the 1st amendment of the US Constitution171. But the recognition of an existing conflict helps little towards solving it. Worse, if we take legal pluralism seriously, the conflict is not only one between the French and the American (or Californian) community. Numerous other overlapping communities are involved: the community of bidders in internet auctions, the community of survivors of the Holocaust, the community of opponents of Holocaust denial, the community of free speech advocates, the community of collectors of Nazi paraphernalia, and so on and so forth. All of these communities have a prima facie claim to asserting jurisdiction over the Yahoo case, and the norms they would wish applied are hardly all the same.
169
Tribunal de Grande Instance Paris, decisions of May 22 and November 20, 2000, available at http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522-asg.htm; Yahoo! Inc. v. La Ligue Contre le Racisme et l’Antisémitisme, 169 F.Supp. 2d 1191 (N.D. Cal. 2001), reversed on other grounds by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 379 F.3d 1120, 32 (9th Cir. 2004); rehearing en banc granted by Yahoo! Inc. v. LA Ligue Contre Le Racisme Et L'Antisemitisme, 399 F.3d 1010 (9th Cir. 2005). The case is still pending for the question of whether the court had in personam jurisdiction over the plaintiffs in the French proceedings. An irony of this now famous case is that the substantive decision in France, namely that a web site provider could be liable for the Nazi paraphernalia offered on its site, may well be moot. In April 2005, the Cour d’appel de Paris upheld an earlier decision (available at http://www.legalis.net/jnet/decisions/responsabilite/jug_tgi-paris_110203.htm), acquitting the former president of essentially the same charges that were brought against Yahoo!, holding that the provider of an auction site could not violate the relevant Article of the French Criminal Code. See ‘Former Yahoo! Chief Cleared in Nazi Case’, http://news.com.com/Former+Yahoo+chief+cleared+in+Nazi+case/2100-1030_3-5658757.html. Had Yahoo! appealed the decision in France, instead of going right to the Californian courts, it might well have reached an acquittal as well.
170
Berman, Cosmopolitan Vision (supra n. ), ;1878; cf. also for criticism Reidenberg, 153 U. Penn. L. Rev. 1951, 1959 (2005)
171
See Ralf Michaels, Territorial Jurisdiction after Territoriality, in: Globalisation and Jurisdiction, 105, at 118 (2003); Berman, Cosmopolitan Vision (supra n. ), at 1836, 1877.
44
In fact we can predict that the chance for conflict is rather greater than between states for another reason. States are all relatively heterogenous and find their policies, at least in democracy, through some process of interest balancing. This is likely to lead to largely similar laws. Non-state communities on the other hand will often be relatively homogenous. This may be a good argument to leave the regulation of their own internal affairs to them – something that can be done through incorporation, deference and delegation. But insofar as conflicts between communities are at stake, the claim of communities to “jurisdiction” is often not different from the formulated policy of a business association, their efforts at “persuasion” not different from political lobbying by interest groups172. In other words, the fact that each state must mediate “internal” conflicts in the creation of its norms makes it possible to avoid conflicts between the norms of different states. B. The Violence of Conflicts Thus, the more lawmakers we have, the more conflicts will arise, and the more crucial, ironically, the position of the state as decision maker becomes. Does legal pluralism at least lead to more peaceful resolutions of such conflicts, because the recognition of other lawmaking communities forces greater deference to their decisions? Proponents of legal pluralism often support pluralism as a peaceful alternative to the violence of the state173. This image is obviously influenced by the colonial origins of the concept of legal pluralism, the encounter of a repressive (Western) legal system on the one hand, and a repressed local law on the other174. Yet this hope may well, in globalization, be turned onto its head. Let me use a somewhat counterintuitive example to illustrate this, the war on terror. What does the war on terror have to do with conflict of laws175? The US administration has always justified its actions in legal terms; it has over and over emphasized its “right” to
172
Of course, foreign nations also engage in lobbying. The difference is that lobbying is not the only path available for foreign nations.
173
See, e.g, Mary Kaldor, Global Civil Society (2003).
174
Cf. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2005).
175
Cf. Diane Amann, Abu Ghraib, 153 U. Pa. L. Rev. 2085, 2104-2106, 2115-2116 (2005).
45
self-defense, the legitimacy of its actions176. Now if the US asserts a “right” to go to war against Afghanistan and Iraq without express authorization by an international law institution (notably the UN Security Council or the International Court of Justice177), then this presumes the assertion of jurisdiction to determine the existence of such rights. In fact, we can reconceptualize the statement from a conflict of laws perspective: The United States first asserts jurisdiction to determine the existence of a right to preemptive self-defense. (The basis may well be the effects of terrorism on the US, effects being one generally accepted basis for jurisdiction178.) Then, in a choice-of-law analysis, it determines a (not clarified) body of (natural?) law as applicable, which grants such a right in opposition to traditional public international law. Finally the US enforces its own decision with military power179. Of course the US, unlike non-state communities, does not require jurispersuasion in order to convince other states, in this case Iraq, to enforce its jurisdictions, it can do so on its own. We may think of all of this as appropriate or inappropriate, and legal pluralism will not help us in the assessment because, as an observation, it does not have any normative value180. But we need to take into account that, from a pluralist perspective, the United States is not the only community asserting jurisdiction in this war. Saddam Hussein’s insistence on the sovereignty of Iraq, in itself an insistence on its jurisdiction (as its right to determine what is best for Iraq) had to be disregarded in the course of the war, whether rightly or wrongly. Worse, terrorist groups in Iraq similarly assert their power over Western captives in what could be seen as law-like ways. They assert “jurisdiction” on
176
See Michael Byers, Pre-emptive Self-Defense: Hegemony, Equality and Strategies of Legal Change, 11 J. of Pol. Phi. 171 (2003); Fleur Johns, Guantánamo Bay and the Annihilation of the Exception, 16 Eur. J. Int’l L. Issue 4 (forthcoming).
177
The ICJ has, in a lengthy obiter dictum, rejected the US claim to a right of preemptive selfdefense, as invoked for the Iraq war. [Cite] For possible justifications for the Afghanistan war see Michael Byers,
178
Another possible basis is the protective principle; see Vaughan Lowe, Jurisdiction, in: International Law (Malcolm Evans, ed., 2003), 329, 342.
179
For military invasion as a method of extraterritorial enforcement see Goldsmith, Against Cyberanarchy (supra n. ), 1216 n. 74 (citing to United States v Noriega, 746 F. Supp. 1506 [S.D. Fla 1990]).
180
Woodman, Ideological Combat (supra n. ), 48 f.; Santos, Common Sense (supra n. ), 90 f.; Koskenniemi (supra n. ), 16-17.
46
the basis of the fact that these Westerners came to Iraq as members of, or at least in connection with, the occupying forces, they convict them, and then enforce their “judgments” in the most brutal way possible, by beheading victims in front of video cameras. Should we grant these terrorist groups, should we grant al-Qa’eda, the status of a community with its own jurisdiction? Berman considers (not in this specific context) that “some communities may embrace norms that many would find undesirable”, but does not see this as a great problem, because “in order for the legal norms of a non-state community to be enforced, such norms must be adopted by those with coercive power and abhorrent assertions of jurisdiction are unlikely to achieve widespread acceptance.”181 This does not help where these communities enforce their decisions on their own. More importantly from the perspective of theory, there may be an analytical glitch in this. What exactly is abhorrent here – the assertion of jurisdiction by these communities or the outcome of the assertion? Do we deny these groups the right to make and administer law altogether, or do we only deny recognition to the results of its exercise? Is our rejection of their decisions based on their lack of jurisdiction, or merely on a public policy exception? It seems that cosmopolitans would have to go the latter way182. But it seems doubtful whether a theory that has to put so much emphasis on the public policy exception is more apt to deal with the challenges of legal pluralism. Many of the non-state legal orders that legal pluralism finds are deeply unjust. Little seems to be gained if we first recognize their jurisdiction, but then deny recognition to the outcomes of its assertion. The glance at ugly non-state communities opens our eyes to another, perhaps unwelcome, consequence of cosmopolitan conflict of laws. Raising non-state communities to the level of the state as law-making bodies implies, necessarily, reducing the state to the same level as non-state communities. If the jurisdiction of non-state communities can be recognized, provided they succeed in jurispersuasion, it seems plausible that states should
181
Berman, Globalization of Jurisdiction (supra n. ), 511; cf. id., Law and Globalization (supra n. ) 537 f.
182
Cf. Berman, Globalization of Jurisdiction (supra n. ), 525 f. (“…a cosmopolitan pluralist approach requires that the enforcing court scrutinize the original judgment both for its assertion of community dominion and for its substantive norms.”)
47
be free to denying jurisdiction even to states if those do not succeed in jurispersuasion. So far, we recognize the jurisdiction of states, regardless of whether they are democratic or not. But why, in a cosmopolitan conception, should we do this? Why should we not deny states with non-representative governments their jurisdiction? We occasionally disregard their sovereignty in the new world order; should we not likewise simply disregard, for purposes of conflict of laws, their right to make and administer law altogether? Or is it perhaps liberating for small and weak states that they need not constantly engage in jurispersuasion? C. From Law to Power From this view, a pluralist vision of conflict of laws may have exactly the opposite effect from its ideal. It cannot avoid making a distinction between communities with and communities without jurisdiction, which in traditional conflict of laws is achieved through the formal criterion of “state”. It cannot protect non-state communities (and arguably weak states) from having to convince states of their jurisdiction, so that their law is enforced. And it cannot achieve a universal criterion, binding on states, telling them in what situations they must recognize foreign communities with their jurisdiction, and when they need not do so. This leaves only jurispersuasion as relevant criterion. We may hope that this will lead to more deliberation, but we must fear that it will rest on power and the selfish interest of communities. Taken together, this creates the danger that the decision of all these matters is left in the hand of powerful actors, be theystates or other communities. It is the conflict of laws of powerful states that determines who is in the club and who is not. For these states, conflict of laws can become a tool of hegemony, for weaker states and non-state communities alike, the need of jurispersuasion necessitates acceptance of such power. The apotheosis of legal pluralism collapses back into crude international relations realism, in which each community determines what is best for itself, and the strong states are not seriously constrained in assertion of their own jurisdiction, and denying other communities’ jurisdiction, when they fit. Where every community can equally claim to assert jurisdiction, jurisdiction no longer fulfills a filtering, distinguishing function, and questions of conflict of laws become mere questions of politics and power. The 48
traditional concept of choice of law, with all its shortcomings and inadequacies, is able to function as a “gentle civilized of nations”183. D. The Politics of Conflict of Laws Compared to this, the traditional approach to conflict of laws, which only defers to state law may suddenly look attractive again, both politically and rhetorically. If we cannot maintain this approach in good faith, because we recognize the monopolistic position of the state as untenable under conditions of globalization, then we need a political theory to support the new choice of law. We will have to ask whether the freedom that private law sets out to guarantee can be had without the state184. We will have to ask whether it is possible to have a meaningful system of global governance that neither collapses into structures of empire or a global state185, nor into a system in which, because all communities are equal, pure power rules. Overcoming the regulatory state is a goal both of the radical left (Marxism) and the radical right (libertarianism). If cosmopolitan conflict of laws, as a normative proposal, wants to steer a middle way, it will need a more robust political theory of global governance to back it up. All of these questions may find answers, but it seems that these answers will be necessary for a legitimate pluralistic conception of choice of law. It may well be that a more fruitful use of insights from legal pluralism lies in relaxing the claim that non-state normative orders are law like state law. Even in the debate within legal anthropology and sociology there is no agreement on the claim that non-state legal orders must be seen as, and treated as, “law”. For example, Simon Roberts has recently
183
Cf. Martti Koskenniemi, The Gentle Civilizer of Nations - The Rise and Fall of International Law 1870-1960 (2001).
184
See e.g. W.E. Scheuerman, Cosmopolitan Democracy and the Rule of Law, 15 Ratio Juris 439 (2002); Pierre Manent, Democracy Without Nations?” Journal of Democracy (April 1997); Mark F. Plattner, Sovereignty and Democracy, 122 Policy Review (Dec 2003), available at http://www.policyreview.org/dec03/plattner.html#ref7; Jeremy A. Rabkin. Law Without Nations? Why Constitutional Government Requires Sovereign States (2003); Alfred C. Aman, Jr., The Democracy Deficit (2004).
185
Martin Shaw, Theory of the Global State: Globality as Unfinished Revolution (2000); Hardt & Negri, Empire (2000)
49
voiced a warning against “representing law without the state”186, and others have been similarly cautious about calling non-official law “law”187. These authors are quite unsuspicious of trying to preserve some kind of unjustified primacy of the state over nonstate actors. Rather, they fear that an extensive concept of law is not helpful methodologically, both for the law and for anthropology. As to the first claim, Roberts points out: “As radically different modes of ordering and decision are represented together as ‘legal’, law loses analytic purchase.”188 And as to the second claim he says: “Negotiated orders have their own rationalities.”189 In fact, the “new” legal pluralism is criticized precisely because, by categorizing non-state normative orders as law, it still uses the state as model for what does and does not count as law. Legal pluralism, therefore, does not translate as easily into conflict of laws as we may think, or wish. From the detached position of the sociologist and the anthropologist, state and non-state orders may look similar. From the position of the state that has to distinguish, for normative purposes, between law and non-law, this distinction becomes crucial, because its abolition would ultimately undermine the state itself. Often, there is an ideological reason for the desire to raise non-state law to the level of law, both on the right and on the left. On the right, proponents of law merchant are frequently also proponents of free markets – for them, denying the state the monopoly on law-making is equivalent with denying the state its superior role in determining adequate levels of regulation. The invocation of an autonomous law of the internet came hand in hand with a normative claim against regulation, and was rejected in no large part for this normative claim. At the same time, the use of terminology like “law” suggests, subtly, greater autonomy of normative orders. For this reason Ford is very critical of such “spatialization” of the internet, because “metaphysics of space threatens to derail sound analysis and to smuggle in, as inevitable or logically compelled, background rules that
186
Simon Roberts, After Government? On Representing Law Without the State, 68 Modern Law Review 1 (2005).
187
Brian Tamanaha, The Folly of the ‘Social Scientific’ Concept of Legal Pluralism, 20J. of L. & Soc. 192 (1993). For a defense of legal pluralism against Tamanaha and especially Roberts see von Benda-Beckmann, Who’s Afraid (supra n. ), 37-59.
188
Roberts, After Government (supra n. ), 23.
189
Ibid.
50
should be subject to debate”, including “self-regulation”190. The new law merchant, in its attempt to escape state regulation, is criticized from a political perspective191. On the left, legal pluralists oppose the nationalism and ethnocentrism instilled in classical conceptions of law. By limiting the notion of law to state law, so legal pluralists argue, we implant an intrinsic bias into our analyses, a bias for the state, which in turn is a Western concept. Yet it may be even more paternalistic to represent non-state legal orders as “law; this may well conceal that they are, and want to be, different from the law as it is known in the West. It may thus well be that, in fighting state-centrism and ethnocentrism, such critics fall into an equally dangerous essentialism: juricentrism. For example, the new law merchant was born in international arbitration, which presented itself as an alternative to, rather than a replication of, law. Turning arbitrators to the role of courts, the equitable rules they apply to law, is not necessarily even within their desires. Similarly, raising non-state normative orders to the level of law may not even always meet the interest of those who created those orders. In the words of Roberts again: “Law, long so garrulous about itself, is now, in its contemporary enlargement, graciously embracing others in its discourse, seeking to tell those others what they are.”192 We can link this back to the politics of recognition: If the recognizing state, by recognizing non-state normative orders as law, defines them from the outside, then recognition “as law” becomes a “violent appropriation”193: VI. Conclusion In all likelihood we cannot go back to the illusion that the state is the only relevant lawmaker in the world, and that we can continue choice of law as before. At the same time we find that the challenge of legal pluralism for choice of law has far more dramatic
190
Ibid., 177.
191
Brigitta Lurger, Der Pluralismus der lex mercatoria“, 16 Rechtshistorisches Journal, 705 (1997) (criticizing Teubner’s “global bukowina”); A. Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003); Yves Dezalay & Briant G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, ch. 14 (1996).
192
Simon Roberts, Against Legal Pluralism, 42 J. of Leg. Pluralism 95, 98 (1998).
193
Majid Yar, Recognition and the Politics of Human(e) Desire, 18 Theory, Culture & Society, 57 (2001)
51
implications then we may have thought before. The reason is, as we have seen, that a change in the nature of “applicable law” under choice of law rules goes hand in hand with a simultaneous change in the nature of the state whose choice of law rules designate the applicable law. In their desire to counter the centrality of the state, to acknowledge the existence of non-state legal orders, legal pluralists make us see more clearly the centrality of the state for our thinking about law, and choice of law. Conflict of laws cannot solve the challenge from legal pluralism without also questioning the role and nature of law. The plurality of law easily leads to an ubiquity of law. By overcoming the dominance of state law we do not overcome the dominance of law more generally, in fact we even create more law. Traditionally, the state is the blind spot of choice of law. Legal pluralism succeeds in forcing us to focus on this blind spot, to turn its central, monopolistic position from an axiom to a contingent observation in need of legitimation. But legal pluralists sometimes seem to assume that merely realizing the contingency of the state’s position enables us to dispense of this position. I hope to have shown that this would be an error.The world of conflict of laws is still a world based strictly on the state, to the extent that the state administers conflict of laws. It follows that we should turn the questions asked by legal pluralists on their head. Instead of asking how globalization has changed the role of the state in the world, we should ask how the state must change itself in order to deal with globalization. Instead of asking how multiple communities can replace or supplement the state, we should ask how the state can accommodate multiple communities. Instead of asking how conflicts can be avoided through privatization and depoliticization of private law, we should ask how conflicts can be resolved through a combination of public and private interests194. In short, instead of moving the state to the periphery of our analyses and thereby ignoring its importance for our problems, we should move it into the center of our analysis, so we can critique its role in globalization. If we want to emancipate non-
194
See Robert Wai, Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization”, 40 Col. J. of Transnat’l Law 209 (2002); Horatia Muir Watt, Choice of Law in Integrated and Interconnected Markets: A Matter of Political Economy, 9 Colum. J. Eur. L. 393 (2003) and 7.3 Electronic Journal of Comparative Law (September 2003),
52
state law vis-à-vis the state, then it is not enough to look at the requirements on the side of non-state law. We must also look at what is necessary on the side of the state to make such emancipation possible. And we must ask what kind of emancipation this will be. The simple idea that because globalization brings about a plurality of legal orders the state should recognize all these orders as law is either too radical or not radical enough. The idea is too radical if it expects the state to do things that run counter to what the state, as it exists right now, is about. In a nutshell, the state will always react as state to the challenges of globalization, including the challenge from non-state communities and their laws. The idea is not radical enough if it believes that such a change could be brought about without changing the role of the state. In order to overcome the state-focus of conflict of laws, we must, ultimately, overcome the state itself. Ultimately, by acknowledging the right of everyone to make law, we accept that no one has the right to make law anymore. If everyone is able to claim jurisdiction, no one will have a superior position to mediate between conflicting regulations of conflicting communities anymore, at least not from a superior basis. This may well be a desirable postmodern situation. In any event it is far more radical than a mere adaptation of conflict of laws norms to globalization would suggest.
53
