Chapter 5: Global Law and the Cases for Social Responsibilities
Rule of law and democracy are not exactly a global reality. It is premature, therefore, to speak of global law in the sense of modern positive law, legitimated by formal democratic procedures. Still, a hybrid ‘global law’ is evolving which encompasses different kinds of rules and rule systems. Globally operating law firms, investment banks, rating institutions, sports commissions, environmental movements, accrediting institutes for universities, the ILO for global labor standards and so forth, have more influence on the creation, development and guidance of transnational regimes of rule-making, including ethical rules and rules impinging on public and private morality, than do most national legislative bodies. A ‘lex mercatoria’ based on private global networks is overshadowing and at times deforming the rule systems of nation-states. It has permeated technical standards, professional rules, performance criteria, mediation and arbitration, court procedures, constructions of human rights, environmental protection standards and other fields of regulation with an apparent international and global range (Mertens 1997). Taken together, ‘technical standardization, professional rule production, human rights, intra-organizational regulation in multinational enterprises, contracting arbitration and other institutions of lex mercatoria are forms of rule-making by “private governments” which have appeared on a massive global scale’ (Teubner 1997: xiii). These actors and institutions of global rule-making constitute a fragmented, decentralized and pluralistic discourse about domain-specific rules, but there is no pretense of creating a singular, encompassing and collectively binding set of rules, comparable to national (democratic) law. Functional differentiation is a decisive factor in ruling out any encompassing supreme norms. The...
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