Inter-Systemic Harmonization and Its Challenges for the Legal-State

Abstract

Harmonization is currently proceeding along different lines that reflect ambiguous and multi-vector interactions between traditional and emerging governance actors and that suggest the context in which the future of legal systems, however understood, will be determined. This think piece first considers the foundations. The great 19th century project of horizontal harmonization, centered on states and their domestic law systems. The 20th century project of vertical harmonization focused on legal internationalization, from which the edifices of supra-national institutions and public transnational law evolve. It then turns to the current challenge of inter-systemic harmonization. Founded on governance polycentricity, of the mechanics of law beyond the domestic legal orders of states, of the rise of private law with public functions, and of public entities as private actors, it is changing the landscape of law. The greatest challenge for law is to avoid becoming irrelevant where corporations use contracts to govern their supply chains, states become private market actors, and private enterprises regulate markets by assessment and rating.