Global Legal Pluralism and Commercial Law

Multiple, overlapping, and systemically interactive normative orders regulate commerce, trade, and finance. A diverse set of state and non-state actors produce this plurality of rules governing markets. What these normative orders are comprised of, how they operate, whether some of them deserve recognition as what societies usually conceptualize as law, and their historical lineage, are the subject of significant disagreement and confusion. In ‘Global Legal Pluralism and Commercial Law’, a draft chapter of the forthcoming Oxford Handbook on Global Legal Pluralism edited by Paul Schiff Berman, I offer a taxonomy and classification of the sources of norms and ground clearing on the different kinds of norms at work in the global economy. It starts with a survey of the literature on the history of the law merchant, with a focus on whether a medieval law merchant or lex mercatoria existed and if so in what form and content. It is important to start with this history because it has served as a rationale for advocating the existence of a present-day law merchant in the form of at least some norms not produced by the state. While some legal scholars and jurists have offered visions of an ‘a-national’ law merchant going back into at least the Middle Ages, historians are far more careful and sceptical in their findings. It is unlikely that a body of common rules on the substance of commercial law existed in England and across Europe in the Middle Ages, but still the rules of commerce even then displayed substantial pluralism, as a mix of rules from different sources on procedure, evidence, dispute resolution, and official rules and privileges applicable to merchants. The chapter deals with the pluralism of legal orders governing commercial law in the nineteenth century, with the rise of the modern European nation-state. This history lays the groundwork for thinking about plurality in present-day commercial law. Contemporary debates about the existence of a contemporary law merchant and a transnational commercial law are explored. The work  goes on to examine the various schools of thought about pluralism in commercial law. Advances in law and economics and law and society approaches are explored. Positivist accounts attempting to elucidate the conditions in which plural commercial law orders might be understood, as well as critical accounts questioning whether plural orders in commerce and finance promote power, ideology, and injustice are examined in the chapter. The chapter covers how soft law dominates the regulation of global finance and banking. It concludes by offering predictions of future domains for plural normative orders governing commerce and finance, in particular with the rise of digital technologies.

John Linarelli is Professor of Commercial Law at Durham University.