Global Legal Pluralism and Commercial Law
Paul Schiff Berman (ed.), Oxford Handbook on Global Legal Pluralism (Oxford University Press 2019 Forthcoming)
69 Pages Posted: 10 Dec 2018
Date Written: November 15, 2018
Multiple, overlapping, and systemically interactive normative orders regulate commerce, trade, and finance. A diverse set of state and non-state actors produce this plurality of rules governing markets. How these rules operate, what they are, whether some of them deserve recognition as what societies usually conceptualize as law, and their historical lineage, are the subject of significant disagreement and confusion. This chapter offers a taxonomy and classification of the sources of norms and ground clearing on the different kinds of norms at work in the global economy. It surveys the literature on the history of the law merchant, with a focus on whether a medieval law merchant or lex mercatoria existed and if so in what form and content. It explains that while some legal scholars and jurists have offered visions of an “a-national” law merchant going back into at least the Middle Ages, historians are far more careful and skeptical in their findings. It is unlikely that a body of common rules on the substance of commercial law existed in England and across Europe in the Middle Ages, but still the rules of commerce even then displayed substantial pluralism as a mix of rules from different sources on procedure, evidence, dispute resolution, and official rules and privileges applicable to merchants. The chapter also deals with the pluralism of legal orders governing commercial law in the nineteenth century, with the rise of the modern European nation-state. It lays the groundwork for thinking about plurality in present-day commercial law. The chapter explores the contemporary debates about the existence of a contemporary law merchant and a transnational commercial law. It goes on to examine the various schools of thought about pluralism in commercial law. It focuses on advances in law and economics, law and society, positivist accounts attempting to elucidate the conditions in which plural commercial law orders might be understood, and critical accounts questioning whether plural orders in commerce and finance promote power, ideology, and injustice. The chapter covers how soft law dominates the regulation of global finance and banking. The chapter concludes by offering predictions of future domains for plural normative orders governing commerce and finance, in particular with the rise of digital technologies.
Keywords: commercial law, legal pluralism, law merchant
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