Breaking Frames: Economic Globalisation and the Emergence of Lex Mercatoria

Abstract

The author argues that globalisation processes imply the self-deconstruction of the hierchary of legal norms. Thus, legal pluralism is no longer only an issue for legal sociology, but becomes a challenge for legal practice itself. Traditionally, rule making by private regimes has been subjugated under the hierarchical frame of the national constitution. When this frame breaks, then the new frame of legal institutions can only be heterarchical. The origin of global non-state law as a sequence of recursive legal operations is an as if, not only a founding myth as a self-observation of law, rather the legal fiction of concrete past operations. This fiction however depends on social conditions outside of legal institutions, on a historical configuration in which it is sufficiently plausible to assume that also in former times legal rules have been applied.

Keywords: globalisation, lex mercatoria, legal autopoiesis, legal theory, systems theory

JEL Classification: K10, K40