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The true LEX MERCATORIA

9. 11. 2008

Mgr. Jan Havlíček, právník

www.MEDARB.cz

www.hajan.estranky.cz





The True Lex Mercatoria:
Law Beyond the State
Ralf Michaels*
Abstract
Is there an anational lex mercatoria, a “global law without a state?” The debate seems
infinite. Some argue that the rules, institutions, and procedures of international arbitration
have now achieved a sufficient degree both of autonomy from the state and of legal character
that they represent such an anational law. Others respond that whatever law merchant
may exist is really state law—dependent on national norms and the freedom of contract
they provide, and on the enforceability of arbitral awards by national courts.
This paper suggests that the dichotomy of anational law and state law is false. Although
an anational law merchant would be theoretically possible, the true lex mercatoria
we are currently observing is not such an anational law. Rather, it is an emerging
global commercial law that freely combines elements from national and non-national
law. This transnational law presents a far more radical challenge to traditional statebased
conceptions of law than the idea of an anational law. It makes the distinction between
anational law and state law that permeates the debate over law merchant simply
irrelevant by transcending it. The true lex mercatoria marks the shift in global law
from segmentary differentiation in different national laws to a functional differentiation.
It is a law beyond, not without, the state.
I. The New Romance of the Lex Mercatoria
In 1923, Wyndham A. Bewes published The Romance of the Law Merchant.1
The enchanting title (more than the book itself) evokes the ambivalent situation be-
* Professor of Law, Duke University School of Law. Thanks are due to Gralf-Peter Calliess, Gunther
Teubner and Peer Zumbansen, as well as participants at the Toronto workshop for debates,
and to Carla DePriest, and Catherine Gibson for splendid last-minute research assistance. E-mail:
Michaels@law.duke.edu.
1. Wyndham Anstis Bewes, The Romance of the Law Merchant: Being an Introduction
to the Study of International and Commercial Law with Some Account of the Commerce
and Fairs of the Middle Ages (1923).
448 Indiana Journal of Global Legal Studies 14: 2
tween fact and fiction that the idea of a lex mercatoria has always held. Lex mercatoria
describes both—the reality of an emerging set of legal norms, procedures, and
institutions outside the state and its institutions, as well as the romantic ideal of a
spontaneous law created in, by, and for commerce, independent from the state.
While the romance is eternal, the conceptions of this lex mercatoria have
changed over time. One can distinguish three stages.2 The first stage concerns an
ancient lex mercatoria in the Middle Ages, a transnational set of norms and procedural
principles, established by and for commerce in (relative) autonomy from
states.3 The second stage describes the renaissance of the idea as a “new lex mercatoria”
in the 20th century, an informal and flexible net of rules and arbitrators establishing
a private international commercial law.4 Finally, a third stage has been
described as a “new new lex mercatoria,” which moves from an amorphous and
flexible soft law to an established system of law with codified legal rules (first and
foremost the UNIDROIT Principles of International and Commercial Law5) and
strongly institutionalized court-like international arbitration.6
For some time, positions on the question of whether an anational law merchant
existed or exists were matters of faith rather than of academic rigor, and some participants
in the debate seemed driven more by the wish to defend their own fields
than by a disinterested search for adequate theories. Scholars and especially practitioners
in commercial and arbitration law promoted lex mercatoria not least because
their fields seemed to benefit from it.7 Scholars of conflict of laws, by contrast, ab-
2. For a discussion on the use of history in debates about the current lex mercatoria, see Nikitas
Hatzimihail, The Many Lives—And Faces—of Lex Mercatoria: An Essay on the Genealogy of International
Business Law 71 Law & Contemp. Probs. (forthcoming Summer 2008).
3. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
332–56 (1983) (discussing the rise of mercantile law); see also Lex Mercatoria and Legal
Pluralism: A Late Thirteenth-Century Treatise and Its Afterlife (Mary Elizabeth Basile
et al. eds., 1998) [hereinafter Lex Mercatoria and Legal Pluralism] (providing an overview of
the concept’s history).
4. See generally JH Dalhuisen, Legal Orders and Their Manifestation: The Operation of the International
Commercial and Financial Legal Order and Its Lex Mercatoria, 24 Berkeley J. Int’l L. 129
(2006) (discussing the emergence of the new lex mercatoria).
5. International Institute for the Unification of Private Law (UNIDROIT), UNIDROIT
Principles of International Commercial Contracts (2004 ed.).
6. See generally L. Yves Fortier, The New, New Lex Mercatoria, or, Back to the Future, 17 Arb.
Int’l 121 (2001) (describing the emergence of the new, new lex mercatoria).
7. See Yves Dezalay & Bryant G. Garth, Dealing in Virtue: International Commercial
Arbitration and the Construction of a Transnational Legal Order 3–17 (1996); Filip De Ly,
Lex Mercatoria (New Law Merchant): Globalisation and International Self-Regulation, in Rules and
Networks: The Legal Culture of Global Business Transactions 159, 180 (Richard P. AppelThe
True Lex Mercatoria 449
horred the idea of a non-state law demanding recognition, not least because they
feared for central tenets of their field. Empirical issues mattered surprisingly little in
this debate. When Lord Mustill wrote his seminal critical article on lex mercatoria,8
he rested much of his criticism on the paucity of actual substance of the alleged lex
mercatoria9—all he could find were twenty fairly general principles.10 His criticism
notwithstanding, proponents of lex mercatoria used these twenty principles precisely
to prove their point that a lex mercatoria actually exists—which suggests,
among other things, that they themselves had never felt it necessary to provide the
same kind of in-depth empirical research.11 Old, new, or new new—whether there
ever was a true lex mercatoria in the sense of a law created and administered by
commerce itself and autonomous from the state—was long relatively secondary.
That these discussions are not resolved suggests that they concern matters not
so much of empirical facts but of perspective, of theory. The main issue is not the existence
of a lex mercatoria, in the past or in the present. It is the theoretical possibility
of a law merchant, and whether it can be considered to be law. Indeed, while the reality
of lex mercatoria is still in dispute, its theories have become more sophisticated.
The most promising one comes from systems theory and the theory of autopoiesis.
Gunther Teubner, in his seminal article on a global Bukowina,12 dismisses both
sides of the current debate on a law without a state as theoretically inadequate. Proponents
of a law merchant as based entirely on contract without any legal order—
the French concept of the “contrat sans loi”—ignore that a contract cannot be binding
without a legal system that makes it so. Opponents of a law without a state, on the
other hand, emphasize a primordial position for the sovereign nation-state that has
become questionable in a globalized view of the world. Teubner’s own ingenious
conception starts from the idea of a contrat sans loi that he has just dismissed, and
develops it further in an important way. The contract is not binding in and by itself,
baum, William L.F. Felstiner & Volkmar Gessner eds., 2001) [hereinafter Rules and
Networks].
8. The Rt. Hon. Lord Justice Michael Mustill, The New Lex Mercatoria: The First Twenty-five
Years, 4 Arb. Int’l 86 (1988).
9. Id. at 114 (“This list, incomplete as it may be, seems rather a modest haul for 25 years of international
arbitration.”).
10. Id. at 110–14.
11. This has changed for the “new new” lex mercatoria. The most impressive list of rules of lex
mercatoria is the Transnational Law Digest & Bibliography (TLDB), which is compiled on a continuous
basis by the Center for Transnational Law (CENTRAL) at the University of Cologne,
under the guidance of Prof. Klaus Peter Berger. It is available at http://tldb.uni-koeln.de/.
12. Gunther Teubner, “Global Bukowina”: Legal Pluralism in the World Society, in Global Law
Without a State 3 (Gunther Teubner ed., 1997).
450 Indiana Journal of Global Legal Studies 14: 2
but neither does it require an outside (state-based) legal order to be binding. Rather,
the contract itself creates its own legal order, because it contains an internal hierarchy:
it combines primary norms on the specifically contractual rights and obligations
and secondary norms giving these primary norms their validity. The contract
temporalizes itself by placing itself between the past of standard terms to which it
refers and the future of adjudication. And the contract externalizes, by means of a
(contractual!) arbitration agreement, the adjudication and enforcement of the agreement.
A whole legal system, including objective law and adjudication, emerges
from, and in return applies to, the mere contracts.
The traditional model of the contrat sans loi could at best explain only how
each individual commercial contract can create its own anational legal order, not
how the sum of these contracts gets combined into an order worthy of the name
lex mercatoria. Teubner, in contrast, bases his concept not on the individual contract,
but on contract as institution. In another article,13 he explores this aspect in
some more detail: because the externalization of adjudication typically goes not to
an ad hoc arbitrator but to an institutionalized system of arbitration dealing with
many contracts, an “official” legal order emerges which thereby is able to transcend
these individual contracts on which it is based. Law merchant creates and
perpetuates itself as an autonomous legal system without a state. Lex mercatoria
thus becomes a legal regime independent from, but parallel to, the traditional
legal regimes of national legal orders.14 Since this regime would be illegitimate
without a constitution, it needs to constitutionalize itself.15
The model has been very influential; it has breathed life into the theoretical
debate on lex mercatoria that had otherwise become somewhat sterile. Other authors
have refined the systems theoretical view of lex mercatoria—by applying it
to choice of law,16 by looking more closely at its “reflexive” character,17 and by posi-
13. Gunther Teubner, Review Essay, Breaking Frames: The Global Interplay of Legal and Social
Systems, 45 Am. J. Comp. L. 149, 162–65 (1997) [hereinafter Breaking Frames]; see also Gunther
Teubner, Breaking Frames: Economic Globalization and the Emergence of Lex Mercatoria, 5 Eur. J.
Soc. Theory 199, 211–13 (2002) (a republication of Breaking Frames with slight modifications).
14. See Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for
Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int’l L. 999, 1009–12 (discussing private
legal regimes and their relation to the global legal system).
15. Id. at 1014–17.
16. Gabriele Scherer, Das internationale Privatrecht als globales System (Feb. 15, 2005) (unpublished
Ph.D. dissertation, Humboldt University, http://edoc.hu-berlin.de/docviews/abstract.
php?. lang=ger&id=26355).
17. Gralf-Peter Calliess, Reflexive Transnational Law: The Privatisation of Civil Law and the
Civilisation of Private Law, 23 Zeitschrift für Rechtssoziologie 185 (2002), available at http://
The True Lex Mercatoria 451
tioning it in relation both to the political system18 and the economic system.19 Furthermore,
the conceptualization of lex mercatoria as an autonomous legal system
parallel to that of states has led scholars to move from conceptualization issues to
issues of legitimacy: scholars seek responses to the traditional criticism that lex
mercatoria, as purely “private” law, lacks democratic legitimacy and constitutional
constraints.20 They do so, frequently, by positing that the new lex mercatoria is developing
its own constitutionalization outside the state.21
Systems theory provides excellent tools for the analysis of law’s globalization,
and while the arguments that follow are not strict applications of systems theory,
their heritage to it should become clear. Indeed, in many ways the argument presented
here builds on systems theory in general and Teubner’s article in particular,
and many of the ideas here proposed may, at first sight, seem to present mere
clarifications of his theory. However, these clarifications are important, because
many of the results that have been reached on the basis of his theory (more perhaps
by students of Teubner’s text than by himself) are unconvincing, both empirically
and theoretically. Section II shows that a lex mercatoria as a truly
anational legal system, though theoretically possible, has never existed—neither
in the Middle Ages, nor in the 20th century as “new lex mercatoria,” nor today as
“new new lex mercatoria.” At all times, the transnational law of commerce included
both state and non-state norms and institutions. Section III shows why an
anational law merchant is actually implausible from the perspective of systems
theory. From the perspective of the state (representing the political system), there
ssrn.com/abstract=531063.
18. Mathias Albert, Zur Politik der Weltgesellschaft: Identität und Recht im Kontext
internationaler Vergesellschaftung 235–70 (2002).
19. Tanja Lieckweg, Das Recht der Weltgesellschaft. Systemtheoretische Perspektiven
auf die Globalisierung des Rechts am Beispiel der lex mercatoria (2003).
20. For such a criticism directed at Teubner’s concept, see Brigitta Lurger, Der Pluralismus der
“lex mercatoria“. Anmerkungen zu einem Aufsatz von Gunther Teubner, 16 Rechtshistorisches J.
705 (1997). For a political reconceptualization under an approach closely related to that of systems
theory, see Peer Zumbansen, Piercing the Legal Veil: Commercial Arbitration and Transnational
Law, 8 Eur. L.J. 400, 418–21 (2002).
21. See, e.g., Gunther Teubner, Global Private Regimes: Neo-Spontaneous Law and Dual Constitution
of Autonomous Sectors?, in Public Governance in the Age of Globalization 71 (Karl-
Heinz Ladeur ed., 2004) (arguing that globalization enables the law to help create a dual
constitution of autonomous sectors of world society); Gunther Teubner, Societal Constitutionalism:
Alternatives to State-Centred Constitutional Theory?, in Transnational Governance and Constitutionalism
3 (Christian Joerges et al. eds., 2004) (discussing how constitutional theory should
respond to challenges related to the inclusion/exclusion problem); Zumbansen, supra note 20 (discussing
new forms of international governance including constitutionalization).
452 Indiana Journal of Global Legal Studies 14: 2
are good reasons why law outside the state, other than law of other states, is not
recognized as law. From the perspective of commerce (representing the economic
system), the distinction between state and non-state is simply irrelevant; what
matters is which laws and institutions are more efficient, regardless of their source.
Section IV provides an explanation. Authors endorsing the anational, or nonstatal,
character of lex mercatoria, I argue, are barking up the wrong tree. In perpetuating
the state/non-state dichotomy, the lex mercatoria without a state remains
within a state-focused legal paradigm. This is inconsistent with the emphasis of
systems theory on a world society that is differentiated along functional subsystems
rather than along states.22 A functional analysis should reveal a global commercial
law that reflects the economic system, and should transcend boundaries
between state and non-state. The article concludes with some implications for the
theory of lex mercatoria and for global law in general.
II. Empirical Inadequacy
Teubner suggests that “the ‘global reach’ of law [and the existence of an anational
law merchant] is no longer treated as a question of doctrinal definition but
as an empirical question which allows for variation.”23 Indeed, law merchant proponents
have long argued that they have reality on their side, and they have criticized
their opponents for ignoring reality in order to protect their theories. There
is, they point out, a real law merchant outside the state. If traditional, state-oriented
theories of law are unable to capture this reality, then these theories are
proven to be inadequate.
This turn to empiricism is risky. Law merchant proponents themselves claim a
22. One might object that I make too much of a mere terminological difference, given that the
“private” law described in the work of many proponents of “new new lex mercatoria” actually
combines national, international, and non-national law. Even if the difference were merely terminological,
though, speaking of “law without a state” still would conjure an image of lex mercatoria
that is both substantively and theoretically inadequate. As regards substance, most authors in describing
lex mercatoria focus almost exclusively on those of its parts that are in opposition to state
law. As regards theory, the concept of a law outside or without a state is significantly different from
that of a law beyond the state, as I show in this article. It seems plausible that both the theoretical
and the substantive inaccuracies are consequences that flow from the concept of an anational law.
Thus, while the concept here proposed of “law beyond the state” may merely make the discourse
more accurate, it should thereby be useful in creating a more adequate image of lex mercatoria. In
the end the main goal of this paper is not to criticize the work of others, but to suggest a conceptualization
in tune with the requirements of empirical findings and of theory.
23. Teubner, supra note 12, at 11.
The True Lex Mercatoria 453
reality whose existence they have a hard time proving. While there is undoubtedly
some law outside the state, in all likelihood, a truly anational law merchant does not,
nor did it ever, exist. Law merchant proponents commit exactly the mistake for which
they criticize their opponents: they construct reality to make it fit their theories.
This is no radical suggestion. In fact, the non-existence of a truly autonomous
law merchant is by now so widely known that it may suffice here to sum up the
rich findings by others on this question.
A. The Medieval Lex Mercatoria
This is the case for the alleged medieval lex mercatoria. Recent studies by legal
historians have made quite clear that the existence of a lex mercatoria, at least as a
legal system that was internally uniform and externally autonomous from the state,
is quite doubtful. Merchants at the fairs of St. Ives, previously named as one creator
of law merchant, were governed largely by local official laws.24 Dutch and Belgian
merchants in the middle ages and early modern times, far from relying exclusively
on arbitration and ad hoc quasi-private tribunals, rather used a mixture of private
and public legal institutions.25 Several more general analyses make the thesis of a
historical autonomous non-state lex mercatoria relatively implausible.26
In fact, even the historical sources proclaiming a lex mercatoria are ambivalent
as to its relation to the state. The earliest known text on lex mercatoria, the Little
Red Book of Bristol (ca. 1280), argues that “[m]ercantile law is thought to come
from the market,”27 but later points out, seemingly paradoxically, that “the common
law … is the mother of mercantile law.”28 Some four hundred years later, the author
24. Stephen E. Sachs, From St. Ives to Cyberspace: The Modern Distortion of the Medieval “Law
Merchant,” 21 Am. U. Int’l L. Rev. 685, 687–95 (2006) (despite reference to cyberspace in the title,
the article is devoted almost entirely to legal history).
25. Oscar Gelderblom, The Resolution of Commercial Conflicts in Bruges, Antwerp, and Amsterdam,
1250–1650, at 36 (Econ. and Soc’y of the Low Countries, Working Paper No. 2005–2, 2005),
available at http://www.lowcountries.nl/workingpapers.html.
26. See, e.g., Oliver Volckart & Antje Mangels, Are the Roots of the Modern Lex Mercatoria Really
Medieval?, 65 S. Econ. J. 427, 446–47 (1999); Albrecht Cordes, The Search for a Medieval Lex Mercatoria,
Oxford U. Comp. L.F. 5 (2003), http://ouclf.iuscomp.org/articles/cordes.shtml, text after
notes 11–13; Charles Donahue, Jr., Medieval and Early Modern Lex Mercatoria: An Attempt at the
Probatio Diabolica, 5 Chi. J. Int’l L. 21, 27–29 (2004).
27. “Lex mercatoria a mercato provenire sentitur et inde primo sciendum est ubi mercatum se tenet
de quo huiusmodi leges proveniunt,” Quoted in Lex Mercatoria and Legal Pluralism, supra note
3, at 1. What exactly is meant by mercatum is not clear. See editors’ comments, id.
28. “[L]ex communis que est mater legis mercatorie.” Id. at 18. Accord Donahue, supra note 26, at
26–27.
454 Indiana Journal of Global Legal Studies 14: 2
of perhaps the most famous book in English on lex mercatoria, Gerard Malynes, is
equally ambivalent. Although he emphasizes that lex mercatoria is “not a Law established
by the Soveraigntie of any Prince,” the sovereign seems far from irrelevant,
since in the same sentence Malynes makes clear that “it is a Customary Law approved
by the authoritie of all Kingdomes and Commonweales.”29 Finally, Stracca’s
De Mercatura, often named as an exposition of lex mercatoria, actually deals rather
with ius commune and thus applies to commerce a law that is known to combine official
laws with the received ratio scripta of Roman law.30 To all these authors, the
communion of a law of the market and a law of the state may not have appeared
paradoxical. Lex mercatoria, like ius gentium and general principles of law, was like
the law of all states and therefore the law of no state in particular;31 a law without a
particular state, but not a law thereby detached from states at large.
This is not to say that a lex mercatoria did not exist. Both the name and the
concept were well-known. But this lex mercatoria was not autonomous from official
law. Lex mercatoria was a mixture of official laws and established mercantile
customs and institutions, of official courts and quasi-private local tribunals: “bundles
of public privileges and private practices, public statutes and private customs
sheltered under the umbrella concept of merchant law by their association with a
particular sort of supra-local trade and the people who carried it out.”32 Lex mercatoria
was not non-state law—it was an amalgam of state and non-state rules
and procedures, kept together by its subject: the merchants.
B. The New Lex Mercatoria
The rise of the state came hand in hand with the decline of lex mercatoria.
The state occupied the realm of commercial law and in the process incorporated
or replaced many of the rules created in commerce, with the consequence that a
29. Gerard Malynes, Consuetudo vel Lex Mercatoria, or the Ancient law-merchant, at
Foreword (London 1622).
30. Charles Donahue, Jr., Benvenuto Stracca’s De Mercatura: Was There a Lex Mercatoria in
Sixteenth-
Century Italy?, in From Lex Mercatoria to Commercial Law 69, 74–78 (Vito Piergiovanni
ed., 2005). For a summary of the argument, see Donahue, supra note 26, at 31–34.
31. The same paradoxical step underlies the medieval adage vox populi vox dei: if all agree on
something, then its truth transcends the individuals who agree. See S.A. Gallacher, Vox Populi, Vox
Dei, 24 Phil. Q. 12, 13 (1945).
32. Emily Kadens, Order Within Law, Variety Within Custom: The Character of the Medieval
Merchant Law, 5 Chi. J. Int’l L. 39, 42 (2004).
The True Lex Mercatoria 455
non-state lex mercatoria was unable to compete.33 In return, the relative decline of
the state and the rise of transnational commerce in the 20th century are invoked as
reasons for its renaissance as a new lex mercatoria.
Proponents painted a picture of lex mercatoria as an autonomous law of
global commerce that fulfills the same functions as the law of the state. Arbitral
tribunals took over the task of adjudication. The task of law-making fell largely
to commerce itself, whose customs were viewed as law. The enforcement of ensuing
decisions presented a problem, as long as the state held the monopoly on violence.
But proponents pointed to functional equivalents to state enforcement, such
as reputational pressure or money held in escrow to ensure enforcement.
It is especially important to see the relation of this proclaimed new lex mercatoria
to the state’s law. Despite functional equivalence, the advantage of international
arbitration over national courts and of lex mercatoria over state law was traditionally
seen to reside in their essential otherness. Where state law relied on formalistic and
abstract legal rules, arbitration offered the attraction of decisions based on equity,
tailored to the specific requirements, unbound by a system of binding statute or
precedent. Where state courts relied on legal experts with little expertise on the specific
requirements of commerce, arbitrators were themselves merchants who knew
about such requirements. Where opinions in state courts were published, arbitral
decisions provided parties with much-needed privacy and secrecy. Where in state
courts public norms trumped the will of the parties, arbitrators considered only the
private interests of the parties before them. Political influence on the law, thought to
be detrimental in state law, was notably absent.
Whether this new lex mercatoria really represents an anational system of law,
and how important it is in fact, have of course always been disputed.34 One problem,
frequently discussed though relatively secondary, is whether all of this can be
referred to as “law.” Teubner’s combination of social and juridical validity tends to
confound different criteria of valid law,35 and the frequent emphasis by arbitrators
33. Although some argue that the common law incorporated the pre-existing lex mercatoria,
evidence seems to suggest it side-stepped any lex mercatoria and drew directly on existing customs
and usages. See, e.g., J.H. Baker, The Law Merchant and the Common Law Before 1700, 38 Cambridge
L.J. 295, 296–97 (1979) (discussing how courts held that custom created legal duties at
common law in assumpsit actions).
34. For a very useful overview of different aspects of this debate, see Klaus Peter Berger, The
Creeping Codification of the Lex Mercatoria 32–113 (1999).
35. See Ralf Michaels, The Re-state-ment of Non-State Law: The State, Choice of Law, and the
Challenge from Global Legal Pluralism, 51 Wayne L. Rev. 1209, 1238 (2005). For a discussion on the
distinction between sociological and juridical concepts of law, see Robert Alexy, The Argument
from Injustice: A Reply to Legal Positivism 85–88 (Bonnie Litschewski Paulson & Stanley L.
456 Indiana Journal of Global Legal Studies 14: 2
that equity and customs rather than law should govern their decisions strengthens
this suspicion.36 References in arbitral decisions to “lex mercatoria” or “law merchant”
as applicable law are far less frequent than scholars sometimes believe.37
Moreover, the mere reference does not create a full-fledged legal system, even
under a constructivist theory.38
These are largely matters of semantics. More important are questions as to
the systemic, complete character of the “new lex mercatoria,” especially its autopoietic
structure.39 As long as most arbitral decisions remained unpublished and
no strong system of precedent existed, each arbitrator had to either import legal
norms from state law or translate social customs from commerce into ad hoc applicable
legal norms. A continuous and evolving system of law could not develop
in this way. Each arbitrator had to seek his norms anew, either from the facts of
commercial customs or from the norms of state and international law; a non-national
lex mercatoria was not available.
C. The New New Lex Mercatoria
There is a claim that this has changed and that a “new new lex mercatoria” has
finally led to a system that is autonomous and sufficiently legalized to constitute an
anational legal system comparable to the legal systems of states.40 This new new lex
mercatoria resembles the new lex mercatoria in that it is still presented as functionally
equivalent to state law. However, its image has completely shifted. Where the
Paulson trans. 2002) (1994); François Ost & Michel van de Kerchove, De la pyramide au réseau?
Pour une theorie dialectique du droit 324–38 (2002).
36. In the language of systems theory, many arbitral decisions do not apply the code legal/illegal,
which is central to a legal system.
37. Felix Dasser, Lex Mercatoria—Critical Comments on a Tricky Topic, in Rules and Networks,
supra note 7, at 189, 191–97. However, wider use (or at least knowledge) of lex mercatoria
has been reported elsewhere. E.g., Klaus Peter Berger, Holger Dubberstein, Sascha Lehmann &
Victoria Petzold, The CENTRAL Enquiry on the Use of Transnational Law in International Contract
Law and Arbitration: Background, Procedure and Selected Results, in The Practice of Transnational
Law 91, 103–04 (Klaus Peter Berger ed., 2001).
38. See Calliess, supra note 17, at 194.
39. See the debate in Berger, supra note 34, 89–102.
40. See, e.g., id. at 141–227 (discussing the “creeping codification” of the lex mercatoria through
the drafting of open-ended principles and rules); Fortier, supra note 6, at 124–27 (explaining how
unifying the sources of transnational law into defined principles and rules can overcome the problem
of the lex mercatoria not being practical enough to use in legal practice). For a systems theory
perspective discussing the conditions under which the lex mercatoria could emerge as an autonomous
legal system, see Calliess, supra note 17, at 193–201.
The True Lex Mercatoria 457
attraction of the older new lex mercatoria lay in its essential otherness compared
with state law, the attraction of the new new lex mercatoria lies in its similarity to
state law. More and more, international arbitration has been legalized; amorphous
equity has yielded to detailed legal rules. So-called “formulating agencies” lay down
positive rules of lex mercatoria; the UNIDROIT Principles are presented as a fullfledged
codification of lex mercatoria.41 International arbitrators are now expected
to consider national mandatory state norms to ensure enforceability and to enhance
the legitimacy of their position, or even to develop an independent body of transnational
mandatory norms. Arbitrators are no longer merchants; they are experts in
international commercial law. More and more arbitral awards are published, enabling
a system of precedent. In other words, the new new lex mercatoria now looks
like state law, only better. The most important resemblance it bears to its earlier version
is that the new new lex mercatoria is still portrayed as a law without political
influence. This looks like a global re-inauguration of the emancipation within the
state law of private commercial law from politics.
If such a lex mercatoria existed, it could indeed constitute a global law without
a state. That it is law seems clear. More problematic is the claim for independence
from national laws. Some view the system of international arbitration as
progressing toward autonomy.42 Some point out that the UNIDROIT Principles
go beyond their basis in party autonomy43 and are now almost fully independent
of national laws. They do not address all areas of the law. Lex mercatoria does
draw a distinction between norms within and norms outside the system. But this
distinction does not go along state lines. It goes along functional lines, depending
on whether norms are adequate for international commerce or not.44 Consumer
law, constitutional law—all these functionally separate bodies of law need not
form part of lex mercatoria. At least in the form of the UNIDROIT Principles,
41. Ana M. López Rodríguez, Lex Mercatoria and Harmonization of Contract Law in
the EU 145–46 (2003); Gesa Baron, Do the UNIDROIT Principles of International Commercial
Contracts Form a New Lex Mercatoria?, 15 Arb. Int’l. 115, 124–25 (1999).
42. E.g., Julian D.M. Lew, Achieving the Dream: Autonomous Arbitration, 22 Arb. Int’l. 179, 181
(2006); see also Reza Banakar, Reflexive Legitimacy in International Arbitration, in Emerging Legal
Certainty: Empirical Studies on the Globalization of Law 347, 348–50 (Volkmar Gessner &
Ali Cem Budak eds., 1998) [hereinafter Emerging Legal Certainty] (arguing from a systems
theory perspective).
43. Michael Joachim Bonell, An International Restatement of Contract Law: The UNIDROIT
Principles of International Commercial Contracts 80–82 (3d ed. 2005).
44. See id. at 47. Whether the distinction is successful is another matter; for some doubts, see Isabelle
Veillard, The General and Commercial Character of the UNIDROIT Principles of International
Commercial Contracts, 2007 Int’l Bus. Law J. 479 (2007).
458 Indiana Journal of Global Legal Studies 14: 2
the new new lex mercatoria is gaining some recognition as a legal system without
a state.45 For example, a recent draft for a European Regulation on the law applicable
to contractual obligations provided for the choice of the UNIDROIT Principles
as applicable law.46 More important perhaps are arguments that lex
mercatoria is now going beyond its traditional focus on contract enforcement and
is building its own constitutional law, so necessary for a full-fledged legal
system.47
However, such a legal system is not in existence, and whether it ever will be
seems doubtful. Autonomous international arbitration is still very much a “dream.”48
In reality, arbitration faces difficulties in achieving the legitimacy assigned to state
courts,49 and remains firmly interdependent with domestic courts.50 The
UNIDROIT Principles contain an important opening clause for domestic and supranational
mandatory norms in Article 1.4. The most recent version of the Rome I
Regulation proposal has eliminated the possibility of choosing non-state law as the
applicable law.51 Arbitrators may make frequent use of the UNIDROIT Principles,
but usually only as one of many bodies of legal rules to which they look for guidance.
All of this suggests that this new new lex mercatoria is not a self-sufficient
legal system independent from the state.52 National laws are legal systems because
45. For a more detailed analysis, see Ralf Michaels & Mathias Scherer, Preamble (Function of the
Principles), in Commentary on the UNIDROIT Principles of International Commercial
Contracts (2004) (Stefan Vogenauer & Jan Kleinheisterkamp eds., forthcoming).
46. Commission Proposal for a Regulation of the European Parliament and the Council on the Law
Applicable to Contractual Obligations (Rome I), at 5, COM (2005) 650 final (Dec. 15, 2005).
47. Teubner, Global Private Regimes, supra note 21, at 75–82; Zumbansen, supra note 20, at 427–
28, 431–32.
48. See Lew, supra note 42, at 179.
49. Charles N. Brower, Charles H. Brower, II & Jeremy K. Sharpe, The Coming Crisis in the
Global Adjudication System, 19 Arb. Int’l. 415, 418 (2003) (“[E]lements and perceptions of legitimacy
are too often spectacularly absent.”).
50. Ralf Michaels, Retour aux sources? Droit et politiques des sources du droit contemporain aux
Etats-Unis [Back to the Sources? Law and Politics of Sources of Contemporary American Law], in
Les Sources Du Droit: Aspects Contemporains (Société de législation comparée ed. 2007).
51. Position of the European Parliament adopted at first reading on 29 December 2007 with a
view to the adoption of Regulation (EC) No .../2007 of the European Parliament and of the Council
on the law applicable to contractual obligations (Rome I), Consideration 15 (allowing for incorporation
by reference only), available at http://www.europa.edu/sides/getDoc.do?type=TA&reference
=P6-TA-2007-0560&language=EN&ring=A6-2007-0540#BKMD-18.
52. Another argument by critics has less force. Many critics emphasize that lex mercatoria is not
independent of the state because arbitral awards ultimately require enforcement by state courts. But
the same is true for state judgments that frequently need to be enforced in another country, and nobody
would argue that these legal systems are for that reason not independent of each other.
The True Lex Mercatoria 459
they create a clear distinction between domestic law and foreign law.53 While domestic
law is always applicable, foreign law is applicable only if referred to by domestic
choice of law rules.54 The current U.S. debate over the use of comparative law in
constitutional interpretation clearly shows the importance of this distinction.55 Although
gaps in the legal system could be filled by incorporating foreign norms, in
reality this rarely happens. By contrast, the new new lex mercatoria makes no distinction
similar to that between domestic and foreign law, which would translate
into the distinction between non-state law and state law. If law merchant were an
autonomous anational law, the use of state law would require some sort of reception
process. State norms would have to be incorporated or their applicability would
have to be justified through other specific mechanisms. Gaps could be filled from
within lex mercatoria without the need to refer to the “foreign” law of states.56 But
this is not the case: arbitral awards and court decisions, autonomous law merchant
norms, and domestic laws from various states are cited and used in decisions with
no obvious hierarchical distinction.
That the new new lex mercatoria is not autonomous from the state but rather
contains both state and non-state norms and institutions becomes even clearer if
we view it from the perspective of international commerce itself. Here, it is obvious
that the law of international commerce is not limited to law without a state.
Rather, market participants choose freely between state courts and arbitrators as
adjudicators, and between state norms and non-state norms as applicable norms.
Frequently, arbitration is considered more efficient; sometimes (though far less
frequently than is often alleged), non-state law like lex mercatoria, general principles
of law, or the UNIDROIT Principles are preferred over state law. But to a
considerable degree, parties rely on the state and its institutions. For example,
British reinsurers are reported to prefer courts over arbitration,57 and Japanese
fishermen at the harbor of Tokyo prefer the state-sponsored Tuna Court over private
arbitration.58 Attorneys advise clients to choose the law of a state over the lex
53. I plan to elaborate this point more fully in a separate article.
54. See Niklas Luhmann, Law as a Social System 481 (Fatima Kastner et al. eds., Klaus A.
Ziegert trans., 2004); Calliess, supra note 17, at 214–15.
55. See Michaels, supra note 50, for further references.
56. See Bonell, supra note 43, at 82–86; Emmanuel Gaillard, Transnational Law: A Legal System
or a Method of Decision Making?, 17 Arb. Int’l. 59, 61 (2001).
57. Christine Stammel, Back to the Courtroom? Developments in the London Reinsurance Market,
in Emerging Legal Certainty, supra note 42, at 61, 88.
58. Eric A. Feldman, The Tuna Court: Law and Norms in the World’s Premier Fish Market, 94
Cal. L. Rev. 313, 361 (2006).
460 Indiana Journal of Global Legal Studies 14: 2
mercatoria, even in its codified form of the UNIDROIT Principles. In reality,
even the new new lex mercatoria without a state remains a dream—a theoretical
possibility for the future, not a reality for the present.
III. Theoretical Inadequacy
Proponents of commercial law without a state have rightly accused their critics
of ignoring reality in order to save their theory. They are correct. There now
exists a considerable body of legal rules and adjudicatory proceedings outside the
state that presents a challenge for state-based conceptions of law. However, the
proponents commit the same mistake if they postulate the existence of an autonomous
lex mercatoria because it fits their theories so well. Such a “law without a
state” would indeed be theoretically possible. After all, there was law long before
we could speak of a state in the modern sense.59 But an adequate theory of lex
mercatoria cannot rely on theoretical possibilities; it must explain the empirical
findings and it must explain why a commercial law based in commerce has not
been able to become autonomous. Surprisingly, the systems theoretical approach
itself makes the existence of a law without a state implausible. This can be shown
through two perspectives—that of the state, representing the political system, and
that of international commerce, representing the economic system.
A. The View from the State60
The existence of legal norms and institutions outside the state makes a statebased
theory of law untenable as an objective, neutral theory of law. But such a
theory remains important as a theory formulated from a specific perspective,
namely that of the state (or, to be more exact, that of the state’s legal system). From
59. Nils Jansen & Ralf Michaels, Private Law and the State: Comparative Perceptions and Historical
Observations, 71 Rabels Zeitschrift für ausländisches und internationales Privatrecht
345 (2007); Charles Donahue, Jr., Private Law Without the State and During its Formation, Am. J.
Comp. L. (forthcoming). Proponents of law merchant like to point to history to make this point.
However, the fact that law without a state was possible in a world without states has few direct
implications for a world with states. See Simon Roberts, After Government? On Representing Law
Without the State, 68 Mod. L. Rev. 1, 5–11 (2005).
60. For elaboration on this argument, see Michaels, supra note 35, at 1227–38.
The True Lex Mercatoria 461
a neutral perspective, there are all kinds of laws, both state-based and non-state
based. From the perspective of the state, by contrast, all law is state-based.61
Of course this does not mean that the state could ignore non-state law. It does
not ignore non-state law, but it treats it in a special way: it “re-states” these norms
by translating or even transposing them into the semantics of its own system. One
such mode is incorporation: the copying of non-state norms into state-based norms,
for example, in the form of a commercial code. A second mode is deference: the
transformation of non-state laws into facts, for example, by treating law merchant
as customs. A third mode is delegation: the transformation of non-state law into
subordinated law, for example, by allowing commerce, in the form of contract autonomy,
a space for the development of autonomous norms—norms that achieve
their validity, from the state’s perspective, only because and insofar as the state
recognizes them as such.
Nor does a state-based concept of law mean that an anational law merchant
could not possibly be viewed as law. In a sense, from the perspective of each particular
state, the law of other states is as foreign (and in need of recognition) as any
anational law would be.62 In a state-based theory, as implemented in domestic
conflict of laws rules, English law is “law” in Germany only because German law
recognizes it as such; the same is true for German law in England. The basis for
this mutual recognition is not some metaphysical concept of “law” or “state,” but
simply a system of comity that states grant each other.63
In theory, states could extend such comity to lex mercatoria.64 After all, the
new new lex mercatoria as presented by its proponents does look very much like
state law. In reality, they do not: commercial law is domestic law or foreign law (or
international law), but not non-state law. From the state’s perspective, the restric-
61. My position is misunderstood as a universalist one in Marc Amstutz & Vaios Karavas,
Rechtsmutation: Zur Genese und Evolution des Rechts im transnationalen Raum, 8 Rechtsgeschichte
14, 14–15 (2006).
62. For a similar point, see Boris Schinkels, Die (Un-)zulässigeit einer kollisionsrechtlichen Wahl
der UNIDROIT Principles nach Rom I: Wirklich nur eine Frage der Rechtspolitik?, 4 Zeitschrift
für Gemeinschaftsprivatrecht 106, 108 (2007).
63. Comity understood as a reason for rules (of choice of law), not as their substitute. The actual
use of comity in doctrine is highly problematic. See Joel Paul, The Transformation of International
Comity, 71/3 Law & Contemp. Probs. (forthcoming).
64. Albert, supra note 18, at 255 (citing Bernd von Hoffmann, Internationally Mandatory Rules
of Law Before Arbitral Tribunals, in Acts of State and Arbitration 3, 25 (Karl-Heinz Böckstiegel
ed., 1997)).
462 Indiana Journal of Global Legal Studies 14: 2
tion to state law makes perfect sense.65 States maintain their external stability and
autonomy through mutual recognition; the state’s monopoly of violence can be
maintained as long as states assist each other in their enforcement against private
actors. Similarly, the legal systems of states maintain their autonomy in a globalizing
and interdependent world precisely through mutual recognition and collective
allocation of regulatory powers among them. Thus, while the recognition of
foreign laws enhances the role of any state’s law, because it creates a cartel of lawmakers,
this cartel is almost necessarily hostile to outsiders.
So how can we explain the fact that states are becoming somewhat more open
to lex mercatoria? Mathias Albert presents the following reason: The official law
can safely recognize law merchant, if in other ways than through comity, because
lex mercatoria is essentially different—it does not compete for claims of sovereignty.
66 The flipside may be true as well: The draft Rome Regulation shows that
states can also recognize lex mercatoria when and because it is similar to state law
in essential ways. However, such recognition presents a greater risk for lex mercatoria
than for the state. It means that law merchant must almost necessarily lose
the specificities that may have given it whatever functional advantages it has had
over state-based law. This is why Lisa Bernstein is so opposed to the incorporation
of customs into the UCC,67 and why Celia Wasserstein Fassberg deems the recent
attempts at codifying lex mercatoria as a step toward its decline.68 As long as lex
mercatoria is essentially different from state law, it can play an important role.
Once it claims to be essentially similar, it suffers a competitive disadvantage.
B. The View from International Commerce
All law is state law only from the perspective of the state. From the perspective
of international commerce, the answer is different but not more helpful for
proponents of law without a state. Whether law is state law or not is simply irrele-
65. Contra Schinkels, supra note 62, at 108–11 (arguing that non-application of the UNIDROIT
Principles amounts to unconstitutional discrimination).
66. Albert, supra note 18, at 257.
67. Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent
Business Norms, 144 U. Pa. L. Rev. 1765, 1766–69 (1996); Lisa Bernstein, The Questionable Empirical
Basis of Article 2’s Incorporation Strategy: A Preliminary Study, 66 U. Chi. L. Rev. 710, 715–16 (1999);
see also Robert E. Scott, The Case for Formalism in Relational Contract, 94 Nw. U. L. Rev. 847, 856–58
(2000) (discussing the negative effects of incorporating standardized default terms).
68. Celia Wasserstein Fassberg, Lex Mercatoria—Hoist with Its Own Petard?, 5 Chi. J. Int’l L.
67, 81–82 (2004).
The True Lex Mercatoria 463
vant to the economic perspective of international commerce; all that matters is
whether it is commercial law or non-commercial law.
Economists have long been interested in lex mercatoria, both ancient and modern.
Many authors have viewed the ancient lex mercatoria as prime evidence that
norms created spontaneously within commerce are superior to norms created by political
entities.69 The decline of the ancient lex mercatoria is traced to the decreased
efficiency of communal systems and the simultaneous increase in efficiency of the
state and its institutions.70 In the current world, international commerce is again
thought capable of creating efficient legal norms outside the state.71
Parallel to the positive debate (and sometimes indistinguishable from it) is a
normative debate on the desirability of lex mercatoria. Market liberals celebrate law
merchant as a set of rules that is more efficient than state law. Since law merchant is
based on party autonomy, it is more capable than centralized state law of measuring
and fulfilling party preferences and thereby enhancing overall welfare. By avoiding
choice of law rules, law merchant avoids the costs necessarily involved in choice of
law. By ignoring potential collective or third party interests, law merchant avoids
the transaction costs involved in attempts at redistribution or the interference involved
with the consideration of such interests. Opponents point not only to externalities
but even to efficiency losses within commerce, since the necessarily
amorphous character of lex mercatoria enhances transaction costs.72
Both the empirical underpinnings and the specifically economic arguments
are of limited importance here. Underlying the debate is agreement on one crucial
point: whether commercial law is created in the state or in commerce is per se irrelevant
to commerce itself. All that matters is the functionality of the law for
commerce. This means that neither the view that all law is state law nor the view
69. See, e.g., Bruce L. Benson, The Spontaneous Evolution of Commercial Law, 55 S. Econ. J. 644,
646–51 (1989); Avner Greif, Paul Milgrom & Barry R. Weingast, Coordination, Commitment, and
Enforcement: The Case of the Merchant Guild, 102 J. Pol. Econ. 745, 745–49 (1994).
70. Avner Greif, Institutions and the Path to the Modern Economy: Lessons from the
Medieval Trade (2006); Avner Greif, Institutions and Impersonal Exchange: From Communal to
Individual Responsibility, 158 J. Inst. & Theoretical Econ. 168, 201 (2002).
71. Gillian K. Hadfield, Privatizing Commercial Law, Regulation, Spring 2001, at 40, 45.
72. For economic arguments in favor of the lex mercatoria, see Dieter Schmidtchen, Territorialität
des Rechts, Internationales Privatrecht und die privatautonome Regelung internationaler Sachverhalte:
Grundlagen eines interdisziplinären Forschungsprogramms, 59 Rabels Zeitschrift für ausländisches
und internationales Privatrecht 56 (1995) (summarized in English by De Ly, supra note 7, at 170).
For economic arguments against the lex mercatoria, see Jürgen Basedow, Lex Mercatoria and the
Private International Law of Contracts in Economic Perspective, in An Economic Analysis of Private
International Law 57 (Jürgen Basedow, Toshiyuki Kono & Giesela Rühl eds., 2006).
464 Indiana Journal of Global Legal Studies 14: 2
that the law of international commerce exists purely outside the state makes much
sense. Commerce participants will always choose between state and non-state institutions
depending on which of them are more efficient, with no a priori preference
for one over the other. State and non-state norms and institutions are related
to each other to some extent by competition and to some extent by mutual supplementation.
Similarly, it makes relatively little sense to think of lex mercatoria as
an independent legal system, just as the commercial laws within states do not constitute
independent legal systems. If anything, then, the globalization of the economy
has created a system of global commercial law that encompasses both state
and non-state norms and institutions.
What matters to commerce, and what the debate about the autonomy of lex
mercatoria from the state is really about, is not the distinction between state and
non-state, but rather the distinction between economy and politics. Commercial
law is distinguished not from the state but from political law, especially constitutional
law and regulatory law, much of which remains traditionally within the
nation state.
C. The Internal View from the Law
In a sense, all of this could be viewed as irrelevant. What should matter, at
least for the autopoiesis emphasized by systems theory, is neither the view of the
state nor that of commerce but that of the law itself, the self-observation of the
legal system. Moreover, if lex mercatoria is autopoietic, then it must be created neither
in the state, nor in commerce,73 but within the law itself. But this is true for
the law in general; it is not specific to lex mercatoria. All law, whether state law or
non-state law, is “law without a state,” in the sense that the legal system creates itself
in separation from the political system – although, of course, state institutions
like legislators and courts play an important role as recreated within this autopoietic
legal system. For the same reason, however, all law is “law without international
commerce,” because the legal system is likewise separate from the economic
system – although commerce is recreated within the legal system. It makes more
sense to understand the debate over the state or non-state character as a question
of system differentiation.
The main problem of lex mercatoria is not whether it is state or non-state law.
The main problem is whether its structure, its internal differentiation, reflects
that of the political system or that of the economic system. The global political
73. Lieckweg, supra note 19, at 30.
The True Lex Mercatoria 465
system still represents a segmentary differentiation: it consists, primarily, of states,
every one of which must perform essentially the same functions.74 The economy,
by contrast, represents a functional differentiation: the boundaries that matter
within the global economy are those between different sectors of the economy,
not those between different states. International trade has made the boundaries
between states irrelevant – if not for the economy as such, then certainly for the
definition of its subsystems.
This tension between an essentially state-based political system and a transnational
economy explains the tension within the law. Traditionally, the law reflected
the structure of the political system: legal systems were national systems. Commercial
law, so the argument would have to go, is the first part of the law which leaves
behind its state-based structure and adopts instead the structure of the economic
system. By contrast, since lex mercatoria is confined to international commerce, such
a shift would have no direct implications for other parts of the law—constitutional
law, for example—which may (or may not) remain within a state-based structure.
Whether this shift of commercial law from a state-based structure to an
economy-based structure does or does not take place is an empirical question.
The evidence suggests that such a shift has in fact occurred. In either case, however,
this would not be a shift to a “law without a state” in a meaningful sense. As
long as commercial law reflects the political system, it remains state law because
the internal differentiation within the political system concerns the boundaries
between states. If, by contrast, commercial law reflects the economic system, then
it concerns both state and non-state norms and institutions because the internal
differentiation of the economy concerns not the boundaries between state and
non-state, but rather the boundaries between different sectors of the economy.
IV. The True Lex Mercatoria – Implications
The empirical result is quite clear. Both in history and in the present, we find
a law merchant in the sense of a commercial law that transcends boundaries and
is in that sense transnational. However, the law that we find is not truly autonomous
from the state in any meaningful sense. Rather, we observe a continuous
competition and interplay between state and non-state institutions. International
arbitration replicates the structures of the state;75 the state creates institutions (like
74. Niklas Luhmann, Der Staat des politischen Systems: Geschichte und Stellung in der Weltgesellschaft,
in Perspektiven der Weltgesellschaft 345, 375–76 (Ulrich Beck ed., 1998).
75. For a similar point, see Zumbansen, supra note 20, at 417–18, 427–28.
466 Indiana Journal of Global Legal Studies 14: 2
the Tuna Court) that are inspired by the advantages of arbitral tribunals. Arbitrators
incorporate national norms; national lawmakers incorporate principles from
the customs and informal norms of merchants. If there is an autonomous legal
system of international commerce, then it transcends the divide between state and
non-state law, and its autonomy is not from the state but rather from other parts of
the law, many of which remain national.
That the true lex mercatoria, the existing global commercial law, encompasses
state and non-state norms and institutions is so well documented now that
it would hardly be worth mentioning. By contrast, the implication for our understanding
of globalized law in general and lex mercatoria could be far-reaching,
and here the debate over a “law without a state” still prevents us from making significant
progress. Without going into further detail, I discuss some implications
in order of increasing importance.
First, and least important, the finding helps us understand more clearly differences
between the ancient and the new lex mercatoria. That both transcend the
state is not enough to view them as similar; it suggests only that both do not follow
the segmentary differentiation of the political system of the modern state, but not
whether both follow the same kind of differentiation. Closer inspection reveals a
decisive difference: The medieval merchant law was a status-based law for merchants,
76 reflecting a stratified society that distinguished between different classes of
individuals. The new new law merchant, by contrast, reflects the functional differentiation
of world society; it is a law for commerce, not for merchants.77
Second, the realization of the true lex mercatoria helps reframe the debate over
the character of lex mercatoria. At the moment, much of this debate is captured in
the unhelpful dichotomy of state law and non-state law. Within this debate, a lex
mercatoria that combines both state and non-state elements can only be explained as
a hybrid.78 But the identification of hybrids typically suggests that the differentiating
criteria are inadequate for the object under review.79 Indeed, the state character of
traditional law and the “non-state” character of lex mercatoria are incommensurable,
an incommensurability that replicates the well-known incommensurability be-
76. Kadens, supra note 32, at 44–45; see also Donahue, supra note 26, at 34.
77. Teubner, supra note 12.
78. Richard A. Epstein, Reflections on the Historical Origins and Economic Structure of the Law
Merchant, 5 Chi. J. Int’l L. 1, 19–20 (2004).
79. See Ralf Michaels, Sachzuordnung durch Kaufvertrag 44 (2002) for an example from
an entirely different debate (the distinction between real and personal rights).
The True Lex Mercatoria 467
tween “public” and “private” law.80 The analysis has shown that the confinement of
all law to “state law” is perfectly plausible once we adopt it not as a universal position
but rather as the view of the state.81 (This is congruent to the legal realist view that
all law is public law.)82 By contrast, the view of law merchant as “law without a state”
is not plausible because “non-state” is not a sensible perspective. The relevant opposition
to the perspective of the state is the perspective of commerce, and here law
merchant appears not as non-state law but rather as non-political law. (This is congruent
with the persistent emphasis on the private character of private law).
Third, the finding provides a new perspective on current debates on the need
to “constitutionalize” the lex mercatoria. It is frequently assumed that the new
private law “without a state” cannot be legitimate as long as it is based only on
considerations regarding freedom of contract. Opponents of lex mercatoria use
this deficiency as an argument for linking all law, including lex mercatoria, to the
state and its constitution. Proponents of lex mercatoria argue that it will be necessary
to reinsert constitutional values into this law. However, within a functionally
differentiated legal system, this last response is not the only possibility. While it is
certainly necessary to control, or at least supplement, “private” commercial law
with “public” constitutional law, it is not obvious that the constitutional control
over this commercial law must come from within lex mercatoria itself or must
otherwise be situated outside the state. Realizing that the lex mercatoria does not
constitute a global law “without” a state, that it is still connected in numerous
ways with the state and its law, opens the possibility that the constitutional law of
states retains a degree of complementarity to the transnational law of commerce.
We know that early globalization ideas about the decline of the state were more
ideologically inspired than empirically acquired—states have reacted to globalization
and remain important actors. Similarly, states’ laws retain control over
areas that are undoubtedly globalized—the Internet provides the best example83—
but states play a decisive role in international trade as well. It does not seem inconceivable
that the global legal system is combined of a global commercial law that
has overcome state boundaries, and a global constitutional law that has not. In
80. Luhmann, supra note 54, at 403 n.67; cf. Ralf Michaels & Nils Jansen, Private Law Beyond
the State? Europeanization, Globalization, Privatization, 54 Am. J. Comp. L. 843, 846–53 (2006)
(discussing various distinctions between private and public law).
81. Supra, Part III.A.
82. See Michaels & Jansen, supra note 80, at 856–58, 860.
83. See generally Jack Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a
Borderless World (2006) (discussing techniques national governments utilize to control Internet
communications by enforcing their own laws).
468 Indiana Journal of Global Legal Studies 14: 2
this view, lex mercatoria can be depoliticized precisely because it externalizes political
aspects of the law to another legal subsystem, that of constitutional law,
which, arguably, still reflects the political system of states.
Fourth, and finally, the realization that the true lex mercatoria transcends the
distinction between state and non-state laws suggests an important path toward a
more radical but ultimately more adequate understanding of globalized law. Postulating
a law without a state challenges the state monopoly on the creation and adjudication
of law, but it does not challenge the framework in which we think of law as
related and linked to the state. A law without a state is merely the counterpart of a
law within the state. Ironically, such a conception does not weaken the importance
of the state for the law, but strengthens it. It changes the state from a tacit background
assumption to the prime criterion with which we differentiate between
kinds of law. This limits our ability to think creatively about the law in crucial ways.
When we talk of law without a state, we imagine a law that reproduces the way in
which we know law from the state,84 with codified norms and a hierarchical system
of adjudicatory decision makers. A lex mercatoria that transcends the distinction
between state and non-state laws, by contrast, should enable us truly to imagine law
not only outside the state, but outside even the distinction between state and nonstate,
outside the state framework altogether.
“Law without a state” may have been a necessary concept to overcome the
idea that all law is state law. However, as the mere negation of that idea, it lacks
constructive potential; its implications collapse into either the negation or the replication
of law within the state. We should leave this behind and devote our attention
to the law that transcends these boundaries and presents a more credible
candidate for globalization and a functionally differentiated global legal system:
law beyond the state.
84. See Michaels & Jansen, supra note 80, 886–87.