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From Soft Law to Hard Code: The Juridification of Global Governance

26 Pages Posted: 17 Nov 2007 Last revised: 11 Feb 2009

Gralf-Peter Calliess

University of Bremen - Faculty of Law

Moritz Renner

University of Bremen - Faculty of Law

Date Written: November 16, 2007

Abstract

It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulties in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality".

We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation". As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research.

Keywords: transnational law, globalization, governance, systems theory, law and social norms, legal theory

Suggested Citation

Calliess, Gralf-Peter and Renner, Moritz, From Soft Law to Hard Code: The Juridification of Global Governance (November 16, 2007). Ratio Juris, Vol. 22, 2009. Available at SSRN: https://ssrn.com/abstract=1030526

Gralf-Peter Calliess (Contact Author)

University of Bremen - Faculty of Law ( email )

Universitaet Bremen
Fachbereich Rechtswissenschaft
D - 28353 Bremen
Germany
+49-421-218-66207 (Phone)
+49-421-218-66212 (Fax)

HOME PAGE: http://www.handelsrecht.uni-bremen.de/

Moritz Renner

University of Bremen - Faculty of Law ( email )

Universit├Ątsallee GW 1
Bremen, 28359
Germany
+49 421 218 66050 (Phone)
+49 421 218 66212 (Fax)

HOME PAGE: http://www.moritzrenner.de

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