"Lex Vigilatoria - Towards a control system without a state?" by Thomas Mathiesen
01 September 2005
In 1997 Gunther Teubner edited Global Law without a State.[1] Among the interesting contributions to the volume is Gunther Teubner’s own introductory piece “’Global Bukowina’: Legal Pluralism in the World Society” (pp. 3-28). Teubner’s main concern is the development of lex mercatoria, the transnational law of economic transactions, mostly transnational contract law, which he views as “the most successful example of global law without a state” (p. 3). Global law, according to Teubner, has some characteristics which are “significantly different from our experience of the law of the nation-state” (p. 7):
- The boundaries of global law are not formed by maintaining a core territory and possibly expanding from this, but rather by invisible social networks, invisible professional communities, invisible markets which transcend territorial boundaries.
- General legislative bodies are less important – global law is produced in self-organized processes of what Teubner calls “structural coupling” of law with ongoing globalised processes which are very specialised and technical.
- Global law exists in a diffuse but close dependence not on the institutional arrangements of nation-states (such as parliaments), but on their respective specialised social fields - in the case of lex mercatoria, the whole development of the expanding and global economy.
- For nation-building in the past, unity of law was a main political asset. A world wide unity of law would become a threat to legal culture. It would be important to make sure that a sufficient variety of legal sources exists in a globally unified law.
In my own words, ideal-typically about lex mercatoria: Transnational economic law is developed not by committees and councils established by ministries in nation-states and subsequently given sanction by parliaments, but through the work of the large and expanding professional lawyers’ firms, the jet-set lawyers operating on the transnational level, tying vast capital interests together in complex agreements furthering capital interests. As lex mercatoria develops, it is not given subsequent primary sanction by national parliaments but is self-referential and self-validating, finding suitable “landing points” in quasi-legislative institutions (Teubner p. 17) such as international chambers of commerce, international law associations, and all sorts of international business associations. It develops as a system of customary law in a diffuse zone around the valid formal law of nation-states, not inside valid formal law but not too far outside it. Eventually it becomes regarded as (equivalent to) valid formal law or at least valid legal interpretation. It develops continuously, one step building on the other, in the end validating a law or a set of legal interpretations far from the law of the nationstates.
The increasingly independent and self-sufficient development of such a legal arrangement is the crux of the matter. Ideal-typically, global lex mercatoria develops of its own accord, based on its own internal sociological logic. There is a great debate going on concerning the independence of global lex mercatoria – Teubner calls it a thirty years’ war. I will not enter that war here, but simply ask the question: Do we, in recent developments in the late 1900s and the 2000s, see signs of a developing independent global control system, a kind of frightening lex vigilatoria of surveillance and subsequent political control? Global control without a state?
The question is complex. There are certainly ties between nation-states in the EU and say Schengen, the SIRENE exchange, Eurodac, communication control through retention and tapping of telecommunications traffic data, the spy system Echelon and so on. For one thing, some of these systems are established on the national level first. The recent British proposal to the EU (in July 2005, after the terrorist onslaught in London 7 July) to make the retention of a wide range