Global (Non-)Law: The Perspective of Evolutionary Jurisprudence

Abstract

Globalization and the rules it generates confront legal scholarship with a number of intricate issues. One of these lies at the core of a hypothesis which has been debated for some time in the literature. According to this hypothesis, the legal vacuum left by nation states in the institutional organization of cross-border commerce has been filled by a variety of private governance mechanisms, with the result that regulatory responsibility has been taken over by private or hybrid actors. Testing this proposition requires analytical tools capable of discriminating between private ordering and public law-making. The private, or hybrid, governance regimes that would seem to be the hallmark of what is slowly emerging as global law are a Byzantine mixture of legal and social norms. Because of this, the foremost problem to be solved is that of deciding where to draw the line between legal and non-legal norms. Only if there are unequivocal criteria for distinguishing between law and non-law does it become possible to comprehend how hybrid regimes arise and evolve within the globalization process and, thus, to determine whether private actors have in fact assumed regulatory responsibility.

The algorithmic law of business and human rights: constructing private transnational law of ratings, social credit and accountability measures

“…That algorithmic law emerging in the West shares many points of commonality with Marxist Leninist efforts to liberate law from its bondage to liberal democratic sensibilities and practices. In both cases, law becomes a means of expressing social and political principles and objectives in the forms of command (Amstutz, 2008). The application of those principles is no longer strictly the function of law (Backer, 2012) but is instead delegated in two respects.…”