Anarchy, Order, and Trade: A Structuralist Account of Why a Global Commercial Legal Order is Emerging
While still fragmented, the world is witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macrolevel of state actors as well as on the microlevel of private individuals and organizations. On the macrolevel, the sources of this legal order are complex international agreements; on the microlevel, private contracts employing commercial customary practices and arbitration are driving this process forward. Yet there is no comparable evolution occurring (in any substantial sense) in noncommercial areas of law such as criminal, tort, or family law. There is an overall asymmetry in the development of transnational legal order. But why is this occurring? This Article argues that the emergence of a global commercial legal order may be partially attributed to the unique structural nature of trade. The Article gives a structuralist account, positing that, unlike legal order of a non-commercial nature, commercial legal order has built-in mechanisms that make it particularly suited to evolve in a transnational context—that is, to evolve and sustain itself in the absence of a central legislative or coercive authority. The Article identifies and explores these built-in mechanisms. The Article concludes that, because commercial legal order is uniquely predisposed to emerge without the state, this asymmetry should not only continue but likely grow even more extreme.