Understanding legal authority
After having defined the concept of non-state rules it is important to begin formulating how legal authority can be understood in relation to non-state rules. What makes non-state rules more than simple social norms or guidelines that businesses might adhere to, but which carry no legal obligation? How can we establish whether rules have legal authority? If the source of the legal authority of domestic law is the state, then this would not apply to non-state rules, which have a different origin. This and the following sections provide some tentative analysis as to the ways that the legal authority of non-state rules can be established. Ultimately the argument is that the legal authority of non-state rules depends significantly on their acceptance by the business and legal communities; and that this in turn depends to a significant degree on the extent to which these rules arc applied. The following sections indicate why this aspect is crucial to measuring how non-state rules acquire legal authority.
First, there is a need to create an understanding of how legal authority is attributed to a rule. How do we establish whether a rule is a source of law? Bonnecase defines a source of law as: ''the imposed and predetermined forms that borrow concepts of behaviour from society to impose themselves as the rule of law.’[1] Mistelis defines it as ''the sovereign authority by which a legal rule is applied and the origin of such rules’ as well as The manifestation and substance of the principles and rules of law.’' Thus, a source of law is both the origin (where it comes from) as well as the result (the specific rule). Oppetit clarifies that there are two types of sources: formal (statutory law and case law) and material (doctrine/jurisprudence). Formal sources are a technical process through which law is created whereas material sources affect what laws are created (the substance).
Combining these reflections, it emerges that a source of law is the origin (where it comes from), the technique (how it became law), the reason (why it became law), and the result (the substance of the law). Thus, if as an
Defining non-state rules 31 example one takes (international) trade usages, their origin is their spontaneous creation in commercial relations by the merchant community; the technique is their regular and consistent usage by that merchant community and the enforcement of these usages in courts; the reason is to facilitate (international) commerce and the belief that the merchant community should be allowed to self-organise; and the end result is the actual content of these trade usages. Of course, the process is not clearly separated in practice, but this serves as an adequate example to understand the diverse aspects of the notion of a source of law.
Within the state there is a hierarchy whereby the higher rules (the constitution) provide legitimacy for the lower ones which makes it easier to understand where their legal authority comes from.[2] Ultimately, the state decides this legitimacy. The political process determines what the law is and those that apply the law carry out the will of the state. The government can implement what legislation it wants, regardless of whether this legislation is based on rational arguments or a legal need. Its authority comes from the legitimacy provided by the state.
The legal authority of non-state rules can be asserted through the state. The state can recognise non-state rules as a source of law, it can sanction their application by courts, and it can allow for the parties to the contract to use them. Whilst non-state rules are not created by the state, they can still gain legal authority through their acceptance by the state. The notion that law can only be called law if its source is a sovereign is ahistorical and there always have been laws that do not meet this criterion. Today’s understanding of law is based on 19th century concepts of statehood where the nation state is the focal point of all authority. A rule cannot be excluded as being law '’purely on the ground that on the basis of a theory the sources of law are exhaustive and thus conclusive, and any other instance does not have the necessary competence to legislate.'37
Legal authority is not exclusively the product of the state and the legitimacy of rules can be asserted without the sanction of the state. Historically, legislative texts written by non-state actors had strong legal authority: 'European private law has long been developed on the basis of texts that were largely independent of political domination, the Decretum Gratiana as well as the Saxon Mirror were written by actors outside of the political, governmental sphere of sovereigns and the authority of the Roman Corpus Iruis Civilis
resulted from its recognition by the legal profession.™ The state does not exist in a vacuum and exists alongside different orders, social, legal, political, at different levels, including international.[3]
Legal pluralism is not a 21st century concept. If compared with 19th century ideas of statehood and law this might seem that way, but this does not do justice to a past where multiple laws and norms have always co-existed and governed different communities or different situations, even within one single territorial unit. It is inappropriate to disallow the qualification of a rule as law on the ground that non-state rules are not the law of the land. Foreign law is not the law of the land and yet its inherent quality as law would not be questioned.
The exact status of law changes between times and places. In France case law has recognized that the lex mcrcatoria possesses the quality of law. This means that the lex mcrcatoria has legal authority, but it does not mean that the lex mcrcatoria would now be a permissible choice of law in court litigation. There is consequently not one sole reality when it comes to establishing whether something is (a source of) law. The status of a source of law shifts between situations as it depends on the jurisdiction, the applicable law, and the specific facts of the case.
- [1] As quoted in G Legrand, ‘La Notion de Droit en France au 19eme siècle’ (1921) 23 Revue Néo-Scolastique de Philosophie 436. 2 Loukas Mistelis, ‘Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of International Trade’ in Ian F Fletcher, Loukas Mistelis and Marise Cremona (editors), Foundations and Perspectives of International Trade Law, (Sweet & Maxwell 2000) 10. 3 Bruno Oppetit, ‘Le Droit International Privé, Droit Savant’ (1992) 234 Droit Savant recueil Cours de l’académie de DIP de la Haye 331 Doctrine should be seen in the context of civil law. It refers to legal scholarship, which together forms a framework on how the law should be interpreted, it is both prescriptive and descriptive. Doctrine is a primary or secondary source of law depending on the jurisdiction and can be regularly quoted in court. Doctrine becomes more important if there is less statutory law available. Legal doctrine in the common law refers to a fundamental set of principles underlying the law. It proceeds more from case law than from legal scholarship. Although there are similarities it needs to be kept in mind that civil law and common law have a different approach to the concept of doctrine.
- [2] Günther Teubner, ‘Breaking Frames: Economic Globalization and the Emergence of Lex Mercatoria’ (2002) 5 European Journal of Social Theory 199, 206. 2 Nils Jansen, The Making of Legal Authority (2010) Oxford University Press, 1. 3 Friedrich K Juenger, ‘American Conflicts Scholarship and the New Law Merchant’ (1995) 28 Vanderbilt Journal of Transnational Law 487,490. 4 Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (editor), Global Law without a State (1997 Brookfield) 9. 5 David Oser, The Vnidroit Principles of International Commercial Contracts: a Governing Law (Martinus Nijhoff 2008) 122.
- [3] Nils Jansen, The Making of Legal Authority (2010 Oxford University Press) 41. 2 Ralf Michaels & Nils Jansen, ‘Private Law Beyond the State - Europeanization, Globalization, Privatization (2006) 54 American Journal of Comparative Law 843, 889. 3 David Oser, The Unidroit Principles of International Commercial Contracts: a Governing Law (Martinus Nijhoff 2008) 122. 4 Valenciana de Cetnentos Portland SA v. Primary Coal Inc (1991) Gourde Cassation Civile, 1991 Bulletin Civil 1 No. 1354 An arbitral award was challenged on the grounds that the arbitrator overstepped his mission by acting as amiable compositeur without the authority to do so through applying the lex mcrcatoria. The court of cassation denied the appeal on the grounds that the lex mercatoria is law, and therefore the arbitrator had not acted as amiable compositeur. 5 Ralf Michaels, ‘The Re-statement of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism’ (2005)51 Wayne Law Review 1209, 1238.
