The Creation of Transnational Law – Participatory Legitimacy of Privately Created Norms

The notion of a transnational law has been under dispute for several decades. After Philip Jessup in his widely-known Storrs Lecture on Jurisprudence at the Yale Law School had coined the phrase in 1956, it has been used in numerous contexts. One of the most influential narratives of transnational law is the one that equates transnational law with a “New Law Merchant”. In this context, transnational rules are seen as a source of law for cross border trade law which exists as a third form of law besides national and international law. It is created by arbitrators but also by internationally acting private rule- and standard-setting organizations such as the international chamber of commerce (ICC), that creates and administers standard terms such as the International Commercial Terms (INCOTERMS) or the Uniform Customs and Practice for documentary credits (UCP). There are a number of organization which – just like the ICC – create rules and standards that in some cases are more important for cross-border trade than national or international laws. Legal scholarship, however, has always faced problems conceptualizing such rules and standards. Whereas many legal scholars have tried to explain “private lawmaking” in different ways, others have just rejected the possibility of privately created law at all. Adherents of a theory of transnational law claim that privately created norms have the same effects of law and therefore are “functional equivalents” (Luhmann) of law. Critics of the concept of transnational law, however, have always pointed out differences between state law and transnational law. Especially the lack of (democratic) legitimization of transnational law has been a focal point of severe critique. I will elaborate on the observation that participation seems to play an important role in the creation of transnational law. I will also argue that participation can be a source of legitimacy and normativity in the realm of transnational lawmaking. My thesis is that privately created norms in the transnational field can be as normative as national law if those who will be affected by a norm have the opportunity to participate in the process of its formation