Law without the state

Law without the state is law made primarily outside of state power. It is also called transnational stateless law, or stateless law, or private legal orderings. These orderings, being recognized with some autonomy from the state, challenge traditional ways of thinking about the law.^[1][2] The increasing role of non-state actors in lawmaking takes two different forms. On the one hand, non-state actors have an important role in the making of law within the established legal systems, through lobbying and other means of influencing lawmakers in established legal systems. On the other, non-state actors also create norms outside and independently of these systems. It is this second dynamic in normative systems and norm development that is referred to as law without the state.

History and origins in Europe

Non-state law-making authorities before the modern state

The existence of non-state actors in regulatory law-making is not novel. The emergence of the modern state and its quasi-monopolist role in legal regulation did not arrive until the 17th century. During the Middle Ages, in Europe at least, legal production was concurrently made by various regulators at different infra- and supra-state levels, both secular and religious.^[3] Different cities had law-making power, feudal lords retained such power. At the same time numerous local customs were applied and the ecclesiastic authorities – both local and Papal –had regulatory power as well. Finally fairs and markets had their own legal customs, not directly sanctioned by state or sometimes even city authorities. These last customs and procedures are often purported to constitute even a common law merchant that operated for the whole trading community across Europe.^[4][5]

There was no established hierarchy between those regulatory sources, but for a certain time this did not lead to friction, rather the different legal systems accommodated each other. The diverse autonomous authorities recognized the 'validity of each other's legal institutions'.^[6] At this point albeit independent they were considered part of the community of Christians which rendered it politically possible for them to mutually recognise their respective regulatory power.^[6] In effect, this is the point in time when private international law is considered to have emerged, as a natural law based technique of accommodating the overlapping scope of legality of the different regulatory communities.^[6][7][8]

Political doctrines (law as state law)

Central Europe's Thirty Years' War (1618 – 1648), and the ensuing political dialogues (see Peace of Westphalia), are commonly associated with the development of the modern system of sovereign nation states, and consequently the modern system of national and international legal discourse. The war has been characterized as a response to "a large number of increasingly powerful actors in Europe, in addition to the multilayered system of political authorities, as well as the religious dimension of the different polities," ^[9] The war's particularly devastating effects on human life, as well as its underlying causes, "undoubtedly constituted a very legitimate raison d'être for an idea of what counts as law."^[1] The Thirty Years' War helped to deliver the impetus for the development of what would become a new social and political paradigm.^{[Note 1]} Historically, it marked a distinct turning point in the relationship between laws and states.

Contemporary approach to legality

When someone inquires about what law is, most laymen will answer this question by associating a set of specific rules of a domestic legal order, or maybe of the international legal system. Lawyers deal with "law" by concentrating on issues such as whether and how those provisions determine the outcome of specific situations. Moreover, they will arguably also question the legal validity of a provision by controlling their accordance with superior rules in the legal system itself, for instance the Constitution. However, those questions do by no means inquire into the very nature of law itself. Schultz has put forward an approach how to determine legality, which will be outlined in the following.^[10]

State as highest legal authority

With regard to the "validity" of the state as the highest legal authority, Hans Kelsen suggests a hierarchy of normative values:

The quest for the reason of validity is always a norm, not a fact . . . the reason for the validity of a norm is presupposition, a norm presupposed to be an ultimately valid, that is, basic norm [the validity of which cannot be derived from a superior norm, like a legal constitution]. The quest for the reason of validity of a norm is . . . terminated by a highest norm which is the last reason of validity within the normative system.^[11]

Kelsen's presupposing of the inherent supremacy of the state in the legal realm can be described using essential Kantian transcendental logic:^[12]

1. P is possible only if Q
2. P is possible (or, possibly P)
3. Therefore, Q.

"In Kelsen's argument, P stands for the fact that legal norms are 'ought' statements, and Q is the presupposition of the basic norm."^[12]

A conception of law without the state points to normative systems that are not dependent upon the linear framework described above, and views the state as an instrument through which a dominant legal paradigm has been disseminated.

The internal and the external point of view

When thinking about what law is, two questions arise which have to be carefully distinguished. First, what does any given legal system consider law? For instance, what makes a tax decree passed by the Swiss parliament binding on Swiss citizens? This is the approach described above and is called an internal point of view.^[13] It does however not answer the question as to what law is. Instead, it inquires about what respectively forms part of the examined given legal system. It does not shed light on why the system as such grants legality. Subsequently, in order to inquire into what law is, it is necessary to establish what exactly confers legality, hence enables any given legal system to decide by itself what it considers to be law or not. This is the external point of view on the legal system.^[14]

There is not a lot of legal writing about the legality of legal systems. This is comprehensible, since answering the first question, namely the belonging of a norm to a legal system and its application to the case, can be arduous enough. It would be cumbersome to think about the very nature of law each time as well. Moreover, most of the legal problems that lawyers need to solve do not leave one specific legal system.

Reasons to ask what law is

Legality, that means calling something "law", matters with regard to two points. First, the label "law" may grant more respect to the norm in question.^[15] Calling something law entices most people to respect it to a greater extent than just a norm of courtesy. Second, thinking about law will help clarify the advantages and drawbacks of an important social institution.

Legality transfers power

Labelling something as law may attribute legality and grant authority to the author of the rules because "law" inheres supremacy over other norms.^[16] It does so by claiming legitimacy.^[16] However, not all law is legitimate; hence, both notions, the label of law and the legitimacy of law, are not always congruent. Nevertheless, everything called law does at first benefit from this presumption of legitimacy.

The label of law and any associated legality must be distinguished from the legitimacy of the norm. Legality refers to the formal attribution of the status of law to a norm, hence transforming a simple norm into a "legal" norm.^[17] A jurisdiction possesses legality when it can validly distinguish which provision constitutes law and which do not. In this context, legitimacy, on the other hand, alludes to the substantive grounds for legality, to the idea that law should be obeyed for other reasons than sanctions.^[18]

States are considered legitimate institutions to produce law according to the Westphalian conception; they primarily hold the legal capacity to create law, even though their own legitimacy might be dubious. Company X may also be considered legitimate, but its output will probably not be considered law. Therefore, not every legal norm is per se legitimate. Nevertheless, because people are inclined to trust in and rely on a norm called "law", this empowers whoever produces legal provisions. Thus, it suffices for legality to lay claim to legitimacy, the norm itself does not necessarily need to be legitimate when the system is legitimate. Schultz calls this observation "the package deal of law".^[18] The general idea of an institution such as a state is considered legitimate, not necessarily every norm it produces. Consequently, considering that legality grants power to the those who sanction it as "law". Thus calling something law must be carefully weighed in advance.

Legality implies promises

Another incentive to consider carefully what we call "law" is that the attribution of the term "law" signifies to most people positive features of the related norm. If every norm was called "law", this positive association would slowly vanish, thus the rule of law be eroded. Societies would consist of no more than a state of anarchy where no norm is superior to any other norm. These "promises" of legality are hence conditions of legality.^[19]

There are various promises that legality undertakes, most importantly predictability and fairness. Predictability renders a norm reliable enough to determine in advance the outcome of a situation and the consequences attributed to a certain behavior.^[20] Likewise, predictability implies that no one is judged on an arbitrary basis but on a preexisting norm. Naturally, predictability is not absolute – and should by no means be so. As Schultz holds, "the pursuit of consistency among decisions only has a very relative value, dependent on what is being made consistent".^[21]

Another promise of legality is fairness. Rawls describes fairness as a "fundamental idea in the concept of justice".^[22] It includes elements of procedural fairness such as due process and impartiality,^[23] as well as of distributive fairness as it manifests in equity.^[24] With regard to its procedural dimension, fairness constitutes a component of predictability; predictable steps in a lawsuit are fair to both parties and help determine the result. In its distributive character however, fairness may perforate predictability and present an independent promise of law.

What are the consequences of legality?

After having established what purposes legality can serve, as well as the conditions for legality, the question persists which consequences legality comprises. Why does legality enable legal systems to create binding rules of law?

Authority of law

The attribution of the label "law" empowers the creator of those norms. Yet, there might be rules in combination with power that do not constitute law. For instance, most people would be reluctant to call an oppressive system like the mafia "law", even though their norms go mostly along with the power of enforcement. In order to illustrate this point, Schultz employs the notion of authority.^[25] A thief with a gun will mostly have the power to enforce his norms ("give me your money") – but if he did not have means to enforce his norm, seldom people would feel obliged to follow it.^[25] Contrarily, rules of a state mostly compel people to comply even though this might not be in their direct interest (paying taxes). Subsequently, "authority" employed in this context comprises legitimacy.^[25]

Legitimacy of law

Why do most people feel compelled to comply with a norm made by a democratically elected entity even though it might not be to their immediate advantage? To answer this question, we have to differentiate between moral and prudential reasons for action.^[26] Prudential reasons describe actions for one's own good. Contrarily, moral reasons relate to actions that eventually amount to other people's benefit, like paying taxes. Personally, people might not consider paying taxes to be a moral act; however, if this norm is in accordance with the highest legal authority, for instance the Constitution, it will be moral "to a greater extent" to comply with it. This does not mean that the norm itself is moral; but the framework of legality creates a moral obligation to obey this norm.^[27]

Subsequently, most people will deduct from the label "law" that there is a moral reason to respect and obey it; they do so, because they believe that law is something good.^[28] There may well be other consequences to legality, as Schultz points out; the consequences of a legitimate authority is not exclusive;^{[Note 2]} they do however explain best why legal system can produce binding law.

As established above, such an authoritative and legitimate entity is not categorized by an internal but an external point of view. An internal examination would inquire whether dictatorships constitute a legitimate authority.^[30] The external view however, asks whether states constitute legitimates authorities.^[31] Most people would not dispute the general legitimate character of states. Consequently, every entity constituting a state according to the three-elements-theory by Jellinek^[32] possesses legality and so do their (sometimes autocratic) norms. Reassuringly, in most systems one norm of law can overrule another norm of law. Consequently, this depends on the rules of the system itself. Sometimes, also norms of another system may interfere, for instance of public international law. An example would be international human rights and norms of ius cogens character, which may also penetrate into a national legal system if the latter has recognized it.

Philosophical underpinnings

Can we call law without the state law?

The link between the existence of a community and law

Relying on recent sociological studies, various authors interested in the study of law without the state sustain that as sociability is not only territory based, but also occurs irrespective of geographical location, law is not to be either.^{[1][33][34][35][36]} According to them, groups lead subject-matter specific social relationships often based on interest. Such relationships eventually lead to the creation of communities, which in time can become entities capable of producing law.^[37] Such communities would thus create law outside the state.

Whether the existence of this type of community is sufficient in order to create law is not always accepted in legal theory. Certain theories of law do not touch upon the question – such as natural law or legal interpretivism. Legal positivism, is the theory which attaches most importance to the sources of law. In this tradition (except for Hans Kelsen) the idea of an independent society precedes the definition of law and the understanding of society is sometimes limited to the state.^[38][39][40] Historically speaking legal positivism and the state are in effect connected. Along with the concept of the nation, law is in particular thought to have been part of the arsenal of means used by the state, in the struggle to affirm its power against other regulators.^[41][42] A number of prominent legal positivists thus still consider that law is limited to state law.^{[Note 3]}

Does legal positivism oppose law without the state?

The basic idea upon which legal positivism rests is that law's existence and content is what has been posited – ordered, decided, practiced, i.e. law according to legal positivism is a social construction. For most contemporary legal positivists – represented by H L A Hart – the existence of a legal system corresponds to the development of rules which determine who has the authority to decide disputes, what the reasons treated as binding are in reaching a decision (i.e. what the sources of law are) and how any of the norms in the system can be changed. Thus law emerges through a process of gradually developing this type of rules about the creation, effective application and modification of the standards of conduct. Legal rules are ones which have been repeated in accordance with the rules specified above. This process is referred to as secondarization.^[43][44][45] Such rules are referred to as secondary rules and it is 'the union of primary and secondary rules' ^[46] which constitutes law. In addition, to this process certain authors, such as Joseph Raz and Neil MacCormick insist on the importance of the emergence of institutions as an additional necessary feature of legal systems.^[47][48]

Even though state law is the most full-blown example of what law is, it is not clear whether the criterion for distinguishing between legal and non-legal systems as presented above, excludes non-state law outright.^{[Note 4]} Contemporary understandings of legal positivism are ambivalent on the necessary link between the existence of law and the existence of a state as its author. Certain trends in legal positivism suggest that law, in order to be law, needs to be (1) virtually comprehensive and needs to claim (2) supremacy over the community (implying also law's exclusivity) it rules upon. Under such conditions, many of the normative systems that are usually considered law outside of the state do not fit the description and should be denied the label of legal system.^[50] Other authors contest the necessity of such a link.

1. Virtual comprehensiveness as a condition of legality: The main claim here is that for law to be law it needs to claim to regulate virtually all facets of the lives of its addressees – the people and other entities the activities of which law claims to regulate. According to Joseph Raz, for instance, a necessary condition for legal systems is 'that they claim authority to regulate all forms of behaviour, that is, that they either contain norms which regulate it or norms conferring powers to enact norms which if enacted would regulate it.' ^[51] Similarly Matthew Kramer suggests that a legal system needs to 'encompass most aspects of human life'.^[52] The need for comprehensiveness for legality is not universally shared. Thomas Schultz for instance considers it a feature of the modern state, rather than an intrinsic characteristic of a legal system.^[53] He suggests further that, if found necessary, comprehensiveness can only plausibly be understood as virtual comprehensiveness and as comprehensiveness attached to a particular community. Virtual first, as for instance in federal states, the federal and federated legal systems regulate broad ranges of human life, but divide the task between themselves: certain activities are regulated by the federal legal system and other - by the federated ones. Each is then in charge of certain but not all activities on the territory in question. Historically as well, being law did not imply comprehensiveness. Different legal systems coexisted on the same territory throughout the Middle Ages and they regulated different parts of the life of the people they were addressed to. The co-existence of common law courts and the courts of law merchant in England are an example of this type of subject matter legal division, as well.^[54] Attached to a community, second, as the scope of the legal system would be delineated by the 'underlying community's boundaries' ^[55] – it would need to claim regulating comprehensively only those activities that occur within the community. As some of them are subject-matter specific, the law created by them can only be subject-matter specific itself. To deny their product the possibility of qualifying as law 'regardless of their level of self-organization, autonomy, and overall development', is according to Schultz 'unduly restrictive' and essentially based on ideas of political sovereignty linked with the modern nation state.^[56]
2. Claim to supremacy as a condition of legality: The claim to supremacy of each legal system is basically a claim that law be the final judge of its domain of application. In other words, for law to be law, it needs to not recognize that there be any superior to it normative system, be it legal or other. Joseph Raz is one of the most notable supporters of this idea. According to him for law to be law, it needs to claim supremacy, i.e. it needs to 'claim authority to regulate the setting up and application of other institutionalized systems by its subject-community'.^[57] A legal system according to Raz, purports to at least permit the functioning of any such organization if not regulate more in detail the manner in which it is to be set up and organized (as state law does usually for the setting and functioning of corporations for instance).^[57] On Raz's account: 'Since all legal systems claim to be supreme with respect to their subject community, none can acknowledge any claim to supremacy over the same community which may be made by another legal system.'^[58] Other authors question the necessity for law to claim supremacy in order to be law. Certain authors, notably Santi Romano, Lon Fuller and Andrei Marmor ^[58] rely on the fact that before the rise of the modern state, several legal systems were operating on the same territory and with respect to the same people without claiming superiority over one another and thus the claim to supremacy is not intrinsic to law. According to Marmor, positive law used to be the exception in the Middle Ages, when additional sources of law such as custom and religion applied to the same community. In this context, none of the legal systems in question made a claim to supremacy.^[59] Federal systems are given as examples as well, as the federated laws do not claim supremacy, but rather accept the supremacy of the federal system.^[60] Nicole Roughan also disagrees with the need for law to claim supremacy on the ground that in situations where several legal systems regulate the same community of people or the same activity, their authority is relative – it is dependent on establishing justified relations between themselves – and not absolute.^[61] In this sense, according to Roughan, a claim to supremacy when several legal systems purport to apply to the same community can never be justified and thus a claim to supremacy cannot be seen as a necessary condition of legality.^[62] According to Roughan, in such cases 'no claim to supremacy could be made in good faith, and nothing would follow about the nature of law or legal systems from the fact that some systems actually make such a claim.'^[62]

Justice beliefs

The dominant paradigm (that of the state as the supreme legal authority) imposes upon modern legal discourse a conceptual environment that finds itself existentially disparate from notions of legal pluralism, emphasizing a linear normative jurisprudence, and reiterating a conception of justice dependent upon the authority of the state.

According to Oxford professor John Gardner, contributions to legal discourse from Thomas Hobbes, Jeremy Bentham, and H. L. A. Hart have lent credence to a perception of the totality of the state, in terms of morality and justice, which has contributed to a belief that "valid laws [are] necessarily endowed with some moral value just in virtue of being valid laws, never mind how morally odious in other respects."^[63] Léon Duguit and Hans Kelsen submit that there are "serious reasons to be convinced that the only means to satisfy our aspiration to justice and equity is the resigned confidence that there is no other justice than the justice to be found in the positive law of states." ^[64] Justice, by this view, depends on the state's ability to regulate and administer it. The administration of justice, and the ability to direct it, provides a theory of justice that is circularly dependent upon the state itself.

Alternative views to state oriented justice beliefs emphasize a "decentralized" version of justice – that is, normative justice that is dependent on factors that do not necessarily fall under the purview of state law. These could include "criticism, social ostracism, commercial boycott, reputational degradation, and physical retaliation."^[65] Corporate Codes of Conduct, for example, along with other private or market-based regulatory frameworks, provide an example of normative structures capable of allowing a form of ad-hoc justice to regulate relevant social interactions: "The idea is that the transnational [lawyers and businesses] of today have their own customs, norms, and practices, and a sort of merchant law is emerging, without benefit of legislation, from their patterns of behaviour."^[66]

Some arguments remain as to whether private justice lacks the capacity to contribute to the "public good," since private arbitrators are paid for and chosen by the parties and "enjoined by a set of practices that localizes or privatizes the decision," and are not likely to incorporate stare decisis in determining the outcomes of cases.^[67] Alternatively, a judge, as a public officer, "enforces and creates society-wide norms" in ways that give "meaning to our public values."^[67]

Colonization

The history of colonialism has produced arguments against the authority and validity of state-based positive legal systems. The nature of colonialism has often been such that indigenous normative systems have been overshadowed by the imposition of the colonial ruler's system of law.

Wherever western colonial powers attempted to establish colonial rule, they were met with the existence of local rules and customs that had developed outside and apart from the direction of a "Western-style central state."^[68] African colonialism, for example, was marked by the imposition of European legal hierarchy onto indigenous legal systems, "incorporating customary law as long as it was not 'repugnant to natural justice, equity, and good conscience'".^[69] It is argued "that many rules which were originally presented by the colonizer as 'customary law' were in fact not found but created by the colonizers themselves"^[70] – that "law was at the cutting edge of colonialism, an instrument of the power of an alien state and part of the process of coercion."^[71]

• "It was as if we were never there in our naked bodies and in being naked we were made invisible to the coloniser; we were terra nullius bodies. And thus were our connections to our law and lands made invisible and unknown to them, as though we had never existed."^[72]

Colonialism in the 18th and 19th century came alongside developments in biological science, contributing to pejorative ethnic-racial differentiation between cultures and their normative systems. Carl Linnaeus, in Systema Naturae, classified human beings according to a distinctly euro-centric view of normative practice:^[73]

• Wild Man. Four-footed, mute, hairy.
• American. Copper-colored, choleric, erect. Hair black, straight, thick; nostrils wide; face harsh; beard scanty; obstinate, content, free. Paints himself with fine red lines. Regulated by customs.
• European. Fair, sanguine, brawny; hair yellow, brown, flowing; eyes blue; gentle, acute, inventive. Covered with close vestments. Governed by laws.
• Asiatic. Sooty, melancholy, rigid. Hair black; eyes dark; severe, haughty, covetous. Covered with loose garments. Governed by opinions.
• African. Black, phlegmatic, relaxed. Hair black, frizzled; skin silky; nose flat, lips tumid; crafty, indolent, negligent. Anoints himself with grease. Governed by caprice.

Law as part of an expression of culture suggests that to protect the diversity of law is to protect the diversity of culture. The overlap of colonial law of states upon other normative institutions served to diminish the diversity of those institutions in the colonized world, leading to backlash and criticism that remain virulent today.^[74]

Revolutionary socialism and law

Referring to the universality of law as "rubbish," 19th and 20th century American writer George Allan England noted that "society is composed of classes, always in more or less open conflict, and that the law is used by the master class as its most powerful weapon in maintaining its rule."^[75] Karl Marx and Frederick Engels' Communist Manifesto lays out the contours of the bitter class struggle separating the economically disadvantaged from those with power and access. In reference to the ruling bourgeois classes, Marx and Engel suggest "jurisprudence is but the will of your class [the ruling class] made into a law for all, a will, whose essential character and direction are determined by the economical conditions of existence of your class."^[76]

The law, interpreted through the lens of revolutionary socialism, provides an instrument with which the elite ruling classes are able to keep the poor and working classes, the proletariat, from a more advantageous arrangement of their own social conditions. By denying those classes of society the same access to the law as the privileged classes, legal outcomes serve to maintain the status quo of class imbalance, and justice is a relative outcome of one's degree of access.

Various strains of social revolutionist thought have been developed. They include libertarian socialism, anarchism, anarcho-syndicalism, and Marxism, among others. A common thread between them resides in probing the claims that seek to provide justification for systems of power and influence. According to Noam Chomsky, a self described anarcho-syndicalist, "the burden of proof for any exercise of authority is always on the person exercising it – invariably . . . most of the time these authority structures have no justification: they have no moral justification in the interests of the person lower in the hierarchy. [Their authority exists to] preserve certain structures of power and domination."^[77] The law, then, is seen as an instrument in the circular exercising of unjustified authority insofar as it is controlled by the prevailing power structure.

Social constructivism and law

Constructivism in law seeks to readjust the contours of orthodox legal thinking. It rules out the "naïve reality" that human beings, through intentional action, make up the basic elements of society.^[78] Further, constructivism challenges the notion of the centrality of the state, and favors a view that accepts the complex interplay between "multiple layers of actors operating with mixed motivations through intervening institutions."^[79]

Constructivist lineages can be traced back to Immanuel Kant and the Critique of Pure Reason.^[79] It incorporates, among other tenets, a "relativist epistemology," whereby "relative truth" is a derivative of an attempt to clarify and expand the "vast inter-subjectivity" of assumptions with which individuals act in the world.^[80]

Legal constructivism rejects the standard positivist model that has left a distinct impression upon orthodox legal discourse. A constructivist view suggests that the dominant legal paradigm in question has produced an "epistemic trap," whereby law is "forced to produce an autonomous legal reality and cannot at the same time immunize itself against conflicting realities produced by other discourses in society."^[81]

Constructivism seeks to incorporate a range of varying discourses into considerations about law, emphasizing a "horizontal process by which normative identities influence and are influenced by 'rule' based structures."^[82] Models of constructivist thinking that yield expansionary interpretations of law (namely, law without the state) render an "uncertain epistemological climate" that has led to "a grievous loss of confidence in the capacity of classical social theory to offer an understanding of the contemporary world"^[83] – put another way, the "exhaustion of the paradigm of modernity."^[84]

Paradigms in law

Thomas Khun developed the concept of "paradigms" in The Structure of Scientific Revolutions, first published in 1962. In it, Khun describes the existence of commonly accepted foundations that provide the core for a given topic of scientific research.^[85] The concept of law without the state implies a shift in paradigmatic thinking away from the positive law of states.

Mark Van Hoecke and Mark Warrington note that "Within legal theory some attention has been paid to the concept of paradigm" – that legal discourse does possess a "core of shared understandings, of basic theories and concepts, a common language, a common methodology . . . a common legal culture."^{[Note 5]} They suggest a set of six standards upon which "legal culture" finds shared understanding:

1. A concept of law
2. A theory of valid legal sources^{[Note 6]}
3. A methodology of law, both for the making and for the adjudication of law^{[Note 7]}
4. A theory of argumentation^{[Note 8]}
5. A theory of legitimation of the law^{[Note 9]}
6. A common basic ideology: common basic values and a common basic worldview (this, they suggest, is likely the most important of the six conditions mentioned).^{[Note 10]}

Legal scholar Thomas Schultz has observed that it cannot be said that something is "intrinsically of a legal nature or not of that nature," and any "norm or norm system merely matches a paradigm of what counts as law at a given time in a given community. The fate of paradigms is to be replaced at a certain stage in a certain way."^[89] Indeed, the replacement of state law as the dominant paradigm, Schultz suggests, would "empower those who produce and control norms and norm systems," and would amount to an extension of legal scholarship into new areas of potential discourse.^[89] The development of a prevailing conception of law without the state as the dominant center of discourse could constitute a paradigmatic shift in the interpretation and use of law.

Examples of law without the state

International arbitration as stateless transnational law

Three main features of international arbitration are particularly important to analyse this field of law within the paradigms of stateless law theory.^[90]

Firstly, even though an arbitration award can be annulled by certain national courts, the conditions for annulment are difficult to meet. Consequently, arbitral awards are largely insulated from court review. Arbitration is quite independent from domestic legal systems mainly because decision-making (law-making), made by arbitrators, is largely independent from state interference. Such autonomy is obtained by degrees, meaning that arbitration can be more, or less autonomous.

Secondly, Arbitral awards are routinely enforced by national courts. It is rare that national courts refuse to enforce a finally binding arbitral award. Put it differently, States grant their coercive mechanisms to the system of arbitration almost unconditionally. Enforcement is also accorded across jurisdictions. Since interference by national courts is almost entirely absent, practically, enforcement in arbitration is substantially autonomous from national law.

Finally, parties in commercial arbitration normally choose, by means of agreement, national law as the applicable law to their dispute. Nonetheless, domestic law in arbitration applies in a slightly different fashion from the way a national court would apply it. The contours of national law are often softened around the principles of international law principles. National law is thus trans-nationalised by international arbitrators. In other words, the application of national law in arbitration is to some extent autonomous from the way it would be applied in national courts.

Traditional theories purporting the autonomy of international arbitration

In the last 50 years arbitration has become more and more autonomous from state control. National legal systems have enacted laws to make it harder and harder to annul awards, stay proceedings or interfere with international arbitration. In France, there is a strong intellectual, judicial advocacy movement aiming at increasing even further the autonomy of international arbitration.^[91] Prominent speakers of such movement have devised a theory in order to explain how international arbitration has become a real self-contained legal system, applying its own rules and independent from state control. The theory portrays international arbitration as a transnational legal system which provides for the rule of law in a stateless global dimension where awards are almost unconditionally enforced by national courts. Three main approaches have been scrutinised so as to label international arbitration as an autonomous legal system instead of a mere social phenomenon.

1. Theory of the legality of the seat of arbitration: The seat is the geographical location where proceedings take place and where arbitration is legally anchored. According to this theory, the legality, e.g. the existence as law, of international arbitration would stem from the national law of the seat. By choosing a specific seat, parties agree to apply exclusively a particular national legal order. There is a strong link of dependency between arbitration and national law. The former depending on the latter. Here, arbitration exists as a legal phenomenon only if the law of the seat says so.^[92] National courts can deem illegal and thus void arbitral awards. However, even if sometimes arbitral awards are annulled in some jurisdiction they are normally enforced in other countries. For instance, Saudi courts would indeed annul awards if one or more of the arbitrators is a woman. If the same award is taken to another country it will likely be enforced and the decision of the Saudi courts disregarded. Under the theory of the law of the seat, this type of situations are not conceivable. As a consequence, such theory is often criticised as it fails to explain examples of annulment and enforcement of the same award across jurisdictions.
2. Theory of legality from enforcement: A second theory states that the legal nature of arbitration is derived from all the legal orders of those countries that enforce arbitral awards. The recognition of an award validates, retrospectively, the entire arbitration process.^[93] This approach is often subject to criticism in that it relates the legal existence of arbitrations to a variable element, namely how many states recognise awards. This means that if 65% of the international community recognises awards, arbitration would be only for 65% a legal phenomenon.
3. Theory of the self-generated legality: A third view postulates that international arbitration is a legal phenomenon because it is recognised as law by the transnational legal system of arbitration. The legality of arbitration is conferred by the rule of recognition of the autonomous transnational arbitral legal system. In this sense, international arbitration is an independent legal system by means of autopoiesis. It becomes thus fundamental to determine what bestows the label of law to the system in the first place. Some authors, relate the legality of the transnational arbitral system to domestic law. For instance, they maintain that French law has characterised the transnational system of arbitration as a legal system by repeatedly stating so in judicial decisions of the highest court of the land.^[94] Such approach is criticised for its over-reliance on the subjective element of recognition as a necessary or sufficient condition to determine the legality of a legal system. Firstly, if recognition was necessary, it would be impossible to recognise the legality of the very first legal system developed in history. Secondly, recognition is not sufficient as it would be fallacious to maintain that anarchy could be a legal system simply by means of recognition.

A new stateless law theory on international arbitration

Another, more recent approach in stateless law theory,^[1] analyses the autonomy of arbitration as a legal system and assess its legal nature by evaluating substantively those values that are expected from a system deserving the label of 'law'. It scrutinises thoroughly such values and determine whether they pertain indeed to the system of international arbitration. The theory borrows from concepts describing the intrinsic values of the law by prominent authors, such as Lon L. Fuller ^[95] and Neil MacCormick.^[96] It asks whether arbitration is at least as predictable as one would generally expect 'law' to be predictable. It also analyses whether arbitration provides a public good as 'law' normally does and whether it pays a service to the society at large. It concludes that the system of international arbitration, albeit having achieved a great degree of autonomy, lacks predictability and mainly serves as a private good for the exclusive consumption by the parties that rely on it. As such it lacks to some extent some important elements that are normally assimilated and implied in the concept of 'law'.

The EBay system as stateless law

EBay is a venue for trading. Several millions of transactions take place every day on such platform. Some of them inevitably lead to disputes which, given the idiosyncrasies of eBay, lead to a number of challenges:^[97]

1. Parties involved in the disputed are normally anonymous actors, geographically remote from one another.
2. The average transaction value is below 100 $. This contrasts with the high cost of resolving disputes through national courts especially if parties involved are geographically distant, subject to different jurisdictions and often speaking different languages. Consequently, the cost of access to justice through national courts is prohibitive, especially in relation with the low value of the transaction object to the dispute. Even small claims courts are ill-suited to solve eBay transnational disputes. Finally, enforcement is not easily obtainable across different jurisdictions.
3. EBay is not responsible for the quality of the products. It is only a market venue. As such, it cannot be held liable for wrongs committed in the course of commercial transactions.
4. State law is theoretically applicable to resolve eBay disputes but in practical terms it is very difficult to do so. Empirically, state law cannot be applied.

To overcome such daunting challenges, eBay devised a series of monitoring and enforcement solutions entirely pertaining to its system. Such solution came about in different stages depending of the evolutionary stage of the system.

At first, eBay was a small market place. It was simply a platform aimed at hosting transactions amongst a small group of private individuals. When misbehaviour occurred, the responsible individual was cut out of the network. Enforcement of rules was thus constituted by a rudimentary social sanctioning mechanism.^[98]

When eBay grew up to thousands of users, administrators established 'The Posse', a group of six controllers checking and policing for abuse on the platform. Users found liable for misbehaviour were put on a black list which was open to public scrutiny. In order to determine what constituted misbehaviour, The Posse relied on a set of social norms internally developed by eBay itself. When the community grew to several million users, monitoring by The Posse became unfeasible. In reaction, eBay introduced three types of formalised control:

• Codification of eBay customs . EBay has introduced a set of written users' policies which became increasingly more developed and precise. A thorough list of rules was established, constantly adapted to follow the development of social practices on the platform and covering every aspect of 'eBay life'. In this sense, an analogy is drawn with the development of state law, hinging on the evolution of the society it aims at governing. In addition, the community of eBay users were granted the power to elect a number of representatives in charge of discussing and participating in 'eBay law-making'. This element is described as the legislative dimension of the eBay system.^[99]
• Formal reputation management system . Users can submit feedback on each and every transaction they undertake. Feedbacks are gathered so as to establish rankings of sellers and buyers. In turn, rankings constitute a formalised system of commercial reputation which is paramount to future transactions' opportunities. A negative reputation will reduce the number of sales opportunities in the long-term as customers will lack trust in the 'bad seller'. This is depicted as the enforcement dimension of eBay.^[100]
• The EBay dispute resolution system can be described as the judicial dimension of eBay. It consists of a two-tiered process:

1. Online-assisted negotiation: users can access an interactive platform on the internet where possible claims submissions are suggested to harmed parties, depending on their description of the dispute. Subsequently, the system generates potential solutions to the dispute at stake, thus increasing the likelihood of a successful settlement. The platform is an expert system which evolves and improves its effectiveness automatically. Interestingly, when users engage in negotiations there make always reference to some norms which would govern the dispute. Following what, in mediation theory, is called the shadow of the law.^[101] An American survey revealed that the vast majority of users normally make reference to internal 'eBay law', namely the users' policies.^[102] They seldom made references to rules pertaining to their respective national legal systems.^[100]
2. The second process consists in the possibility to engage in online mediation, whereby a neutral party manages the resolution of the dispute through an online platform. If parties do not comply with the suggested settlement, their refusal is registered in their reputational history.^[100]

EBay as a legal system through the prism of the double-institutionalisation theory

The theory of 'double institutionalisation', affirms the coexistence, within a social field, of legal and social norms which together regulate the given social field.^[103] In other terms, the development of a legal system does not do away with the social normative order underlying it. According to this theory, social norms are firstly instituted informally in a social system. Later on, those social norms which become formalised, are re-instituted in legal form within specific institutions. In this sense social norms are subject to a double-institutionalisation. As an example, domestic laws are 're-instated' in parliaments in such a way that they can be applied in domestic courts. A primary rule of conduct is re-created according to the rule of recognition, i.e. a secondary rule, by institutional agents turning social norms into legal ones.^[104]

The Idea of 'secondarity' explains the progression form social norms to legal norms. This progression is based on the secondarisation of norms, people and institutions.^[105] Initially the rules are merely rules of conduct, gradually new rules develop that bestow the power of applying the rules to a specific group of people. By being granted these powers, these people become agents of the group (secondarisation of people). Such individuals begin wearing two 'social hats' as they are both members and agents of a social group. Progressively, larger groups of informal institutions are replaced by formal ones regulated by secondary rules that give them specific powers (secondarisation of institutions). These institutions are staffed by those agents who have been conferred the power to apply the rules.^[106]

According to this paradigm, a criterion to distinguish between social and legal orders is the progressive secondarisation, de-doubling of groups and norms. At a certain stage of this gradual process, a social normative system develops into a legal system. Thus, social norms become legal rules only if they are re-instated by a rule of recognition. However, this does not always happen in harmony. There may be dissentions between different officials of the legal systems regarding what rules of recognition ^{[Note 11]} should be applied to institutionally re-state social norms.^[107] A practical example of potential disharmony is given by the Swiss law on life-imprisonment for sex offenders. On the one hand, it is considered to be a valid law within the Swiss parliament. But on the other hand, the Federal Supreme Court of Switzerland sees an incompatibility between such law and the legal discipline enshrined in the European Convention on Human Rights.

Consequently, a social norm can become a legal norm to different degrees,^[108] depending on what institutions re-instated it. The re-institutionalisation of social norms into legal rules occurs in different stages and through different institutions:^[109]

1. Formulation – in parliament
2. Application – in court
3. Enforcement – by the police

The rules become more 'legal' if they are re-stated at all different stages. If a normative order possesses all of these dimensions and institutions, i.e. formulation, application and enforcement, then it is more autonomous from its underlying social order as well as from other legal systems. International arbitration, for instance, is less autonomous than other systems because its enforcement dimension relies on the domestic legal order of the states enforcing the award. EBay is considered to possess each of these three dimensions and institutions. Firstly, the eBay users' policies constitute the formulation dimension of the norms. These are mainly based on eBay owns social norms.^[110] Secondly, the rules are applied through eBay adjudication institutions, i.e. its online dispute resolution system (ODR). The system re-states eBay rules time and again thus transferring information and finally orienting behaviour. The application dimension is thus present.^[111] Finally, the enforcement dimension is overall granted by the feedback mechanism. Enforcement is effective due to commercial reputational issues, determining the likelihood of future transactions.^[112] If violating parties do not comply with eBay ODR 'rulings', this will be recorded in their reputational history. In practice, 98% of disputes end in compliance.

Liberalism in law without the state

Applying the political philosophy of liberalism to law, as emphasized by John Stuart Mill, places the liberty and freedom of the individual as a continuance of the conversation of morality above the power of the government.^[113] For Mill, the legitimate interference in the freedom of individuals by the government should not "infringe upon the social rights" of the people, and may only interfere in society if there is perception of harm to others.^[114] The idea of law, in the absence of the state, provides a useful tool to further the idea of liberalism in the international regime, wherein law becomes a normative product of the individual and society, without the restriction of state sovereignty. However, liberty as the equivocal freedom derived from the moral choices of the individual requires some amount of responsibility vis-à-vis the state to enforce general rules to direct the moral ground of society.^[115]

American philosopher, John Rawls, countered this liberty as an embodiment of freedom embraced through the fair opportunity without the coercive impediment of the government in the last two decades of the twentieth century.^[116] Rawls emphasized not only the freedom of equality, but also adequate opportunity to pursue that liberty, if such autonomy is possible as the true goal to a liberal society.^[116] To further this point, (veil of ignorance reference) Rawls championed not only the freedom of the individual to choose, but also the distribution of wealth to give fair opportunity to all of society, and allow the "worst off" to be as "best off" as the quintessence of societal good. Law, in this societal sense, must allow for the happiness in personal autonomy, but with the participation and toleration as stated by Mills.

Thus, Joseph Raz stated the freedom of choice and the opportunity to pursue those choices are pursuit to the value of individual autonomy within the society.^[117] The liberties of the individual, without the interference of the government but within the bounds of public law, contend on the value of autonomy.^[118] This encompassment of freedom within the bounds of a moral law denotes the independence from coercion manipulation in "pursuit of the good."^[117] According to Raz, the ability for one to choose how to lead their own life, free from the coercion of government rule, creates a moral society wherein the true function of law is to maintain the morality expressed by the freedom of personal autonomy. Liberalism, therefore, is thought to enforce the advocacy of law without the state, and the legality of this law utilizes liberal philosophy to acquire legitimacy among the actors of society within state institutions that facilitate the dissent and conversation to establish norms.

Examples of liberalism without the state

Economic liberalism

Liberalism as a legal system is the emphasis of the minimal interference of government laws, and is widely embraced through transnational commercial law and the economic neo-liberalization movement.^[119] The individual, rather than the nation-state, is the principal actor in the international system, and should therefore be the main construct of the nature and patterns of civil society within the agency of the state that guides the free-market establishment through legislative initiatives.^[120][121] Law creation and dispute settlement of lex mercatoria, or commercial merchant law, is also an attempt to denationalize the global legal system.^[122]

Classical liberalism, the progenitor of laissez-faire economic liberalism, emphasizes the divergence between individual liberty and institutionalized systems of power. This classical conception of the term relied "on three fundamental notions of trade, contract and ownership [reflecting] the basic notions of the emerging classical economic liberalism," namely, "free trade, freedom of contract and individual property rights."^[123]

Adam Smith, frequently cited as a founding exponent of classical economic liberalism, observed that "law ought always to trust people with the care of their own interest, as in their local situations they must generally be able to judge better of it than the legislator can do."^[124] Smith, who has been referred to as a "pre-capitalist" free market advocate,^[125] maintained that, "the sovereign" has only limited responsibility, and that no "human wisdom or knowledge could ever be sufficient [for] superintending the industry of private people."^[124]

Bruce L. Benson has indicated that the "underpinnings of both law and economics are identical," suggesting that economic freedom depends on a state's "obligations to respect private property rights, freedom of enterprise, and voluntary contracts."^[126] Indeed, Benson points out that:

• "Understanding the sources of and barriers to economic freedom requires recognition of conflicting incentives to establish rules and institutions that facilitate wealth expansion and that take wealth from others."^[127]

Others, like Milton Friedman, have advocated a strict neoliberal approach. According to Friedman, "the state exists to protect individuals from coercion by other individuals or groups and to widen the range within which individuals can exercise their freedom; it is purely instrumental and has no significance in and of itself."^[128] Friedman has referred to illegal "black markets" as genuine attempts to get around normative law prohibiting people from mutually agreeable transactions by undermining "artificial government restrictions."^[129] He further suggests that the illegality of such a transaction is simply the undesirable result of the enactment of "bad laws," submitting that:

• "Nobody believes that obeying every law is an ultimate moral principle. There comes a point, if you look back at the history of law obedience – think of conscientious objection during wars – I think you will see that everybody agrees that there is a point at which there is a higher law than the legislative law."^[129]

Notably, "quasi-legal" concepts of soft law have arisen out of the discourse on state legal sovereignty and liberal internationalism, whereby a variety of "codes, guidelines, declarations, sets of principles and memorandums of understanding (MOUs)" have arisen with "considerable normative force," presenting challenges for formalist understandings of classical international legal dialogue.^[130] It is argued that soft law mechanisms are traceable throughout the history of modern legal discourse in varying degrees, and that they represent "an anti-positivist preference for an informal and gradual harmonization, a belief in the possibility of distinguishing between law and politics, between technical rules and policy questions, a commitment to the functional method and a penchant for flexibility and adaptability."^[131]

Much of what constitutes the basis for notions of economic freedom, described above, within the dominant legal paradigm rests on prevailing interpretations of Social Contract theory, which emphasizes a "law of contracts," and especially property law, as a source of the sociability of the doctrine itself.^[132]

Liberalism and human rights

Liberalism in international law recognizes an emphasis back to the individual from the states, with particular regard to human rights law and International Humanitarian Law (IHL).^[133] Due to the state-centric paradigm of the human rights field, accessing remedies of violations is difficult for individuals because only the agency of the state, and the primacy of its sovereignty, can enter into agreements, and render power over its citizens.^{[Note 12]} Thus, the responsibility of the state to protect the human rights of the individual must not interfere with the state's ability to render that power, and the politicization of liberalism increases the awareness and application of IHL and human rights law responsibilities of the state.^[135] Liberalism seeks to enforce states to emphasize individual human rights, and provide venues within the legal regime for individuals to seek freedom and liberty without causing harm to others.

Liberalism and transnational law litigation

Thought to be an important mechanism for protecting human rights of the individual and progressing the establishment of liberal rights, transnational law litigation utilizes domestic courts and institutions to bring claims against international or national law to the system, such as the Alien Tort Claims Act in the United States.^[136] At its essence, transitional law litigation allows private individuals to use a blend of domestic and international law to claim rights and achieve compensation or redress.^[137] The tool of transnational law litigation provides the "individual accountability for human rights violations" and the establishment of, at the minimum, a discussion of, the normative system with the ability to transform the international legal system.^[138]

Communitarianism in law without the state

The origin of communitarianism differs according to the degrees of variance within the communitarian ideology, although the civic republicanisms of Aristotle or the Judeo-Christian communion ideals are more widely disseminated.^[139] Modern conception of justice in communitarianism stems as a response from the liberal push for individuals and their rights.^[140] Communitarianism supports the return to civic virtue and a "regeneration of the moral obligation between citizens"^[141] to which the liberal sum of rights shared with the community provides a sense of belonging rather than freedom as an expression of rights.^[142] According to some scholars, the norms established of a social understanding within a community can considered precursors to national or state law.^[143]

Additionally, the communitarian movement according to Sandel claims community justice is an intermediate means to achieve happiness – not an end in itself, and challenges the concept of the liberal justice.^[144] Justice should be the "virtue of social institutions," not to hold citizens back in the pursuit of happiness but encumbered with the social justice obligation to the local community. The prudential moral grounding wherein the moral positioning of norms and as such, law, can be understood from social relationships and the social structure that forms thereof.^[145] For communitarians, law should "be understood not primarily as a body of rules but rather as an ongoing conversation [that] can serve as a valuable and perhaps irreplaceable arena for the construction and articulation of community identity."^[146] As one conception of the use of communitarian ties and the legality of the community is a substitution for state law, whereby living according to "communitarian virtue ethics" emerges as the way to true happiness of individuals.^[146] Other conceptions of communitarian values can also exist alongside the state, using both the institution and normative values.^[147] Sherman Clark argues for the further inclusion of arguments concerning the character of the community in legal theory, consequently, what law ought to include.^[148] Scholars often believe the communitarian legality paradigm begins before the law and the legal system can be formally institutionalized.^[149]

Global justice and law without the state

The global justice movement views the system of state-made law unjust, and proclaims a need to solve the injustices or where justice is not present, of worldwide economic or social institutions.^{[150][151][152]}

According to Rawls' political conception of global justice, states are "exclusively self-interested," and not limited by juridical institutions.^[153] Rather, the global justice movement seeks to empower people and communities to create reasonable agreements between each other based on an normative standard that disregards the classification between human beings.^[153][154] Nagel advocates that global justice is obtained through the challenging of international injustices and illegitimate institutions on the supranational level between nation-states and through voluntary bargaining,^[155] whereas other scholars declare global justice precedes and then shapes institutional grounding.^[156]

Global justice can be conceived without the assistance of the state, in place of the state, or as a sub-state mechanism, but the agency of the global justice movement maintains responsibility and the participation beyond the boundaries of the state, such as the environmental policies like that of the European Union.^[157] Similar to the use of liberalism and communitarianism in non-state law, the global justice agenda of human rights can be determined as "pre-institutional" rights.^[158] Global justice can also be the creation of new institutions to establish mechanisms of what should be considered global fairness and righteousness to limit the suffering of all human beings, and utilizes the trends of stateless law to pursue these measures.

Examples of law without the state and global justice

In some instances, global justice trends are encouraged through state constitutions^[159] or funded by the state but engaged outside the state sovereignty, such as the Fair Labor Association.^{[Note 13]} Other supranational institutions such as the International Monetary Fund or the more controversial contribution to the global justice movement, the World Bank are theoretically mandated to reduce global poverty.^[161] The Health Impact Fund is said to be "the first genuine global public good."^[162]

Notes

References

Bibliography