Title: Private Legal Systems: What Cyberspace Might Teach Legal Theorists
Abstract: ABSTRACT One of the most pervasive and recurrent issues that legal theory has had to deal with is the very concept of law. And one of the most puzzling questions that cyberspace lawyers have been facing is where and in which form law is to be found on the Internet. This essay seeks to build a bridge between these two issues. The main argument is that, on the Internet and more specifically in the context of eBay (the online marketplace) and with regard to certain aspects of domain names, private spheres of normativity may be found that deserve to be considered as the epitome of private legal systems more so than the lex mercatoria. These systems provide fertile ground to test some of the most classical issues regarding the concept of a legal system and thereby to reflect on the essential features of law. This Article is thus a discussion of legal pluralism based on examples provided by the Internet. These particularly revealing examples are used to shed some light on issues such as the distinction between social and legal norms, the autonomy of a legal system, and law's supposed features of supremacy, territorial exclusiveness and comprehensiveness. TABLE OF CONTENTS INTRODUCTION I. TWO NORMATIVE SYSTEMS ON THE INTERNET A. DOMAIN NAMES B. EBAY II. LEGAL SYSTEMS OR MERE SOCIAL ORDERINGS? THE CRITERION SECONDARITY III. THE SCALABILITY IN LAW IV. JURISDICTIONAL POWERS A. PRESCRIPTION, ADJUDICATION AND ENFORCEMENT: THREE COMPLEMENTARY RULES OF RECOGNITION B. PRESCRIPTIVE JURISDICTION C. ADJUDICATIVE JURISDICTION D. ENFORCEMENT JURISDICTION V. NON-COMPREHENSIVE, NON-EXCLUSIVE AND NON-SUPREME LEGAL SYSTEMS CONCLUSION INTRODUCTION Legal theorists often see the last decade's wealth of reflections on law and the Internet as barely more than a passing intellectual fad, as some young people's agitation that they should and eventually will grow out of, and they feel that the whole idea of a virtual online world is against the natural order of things. Cyberlaw devotees, on the other hand, have a tendency to see their field as so new, so exciting, so revolutionary, and so likely to give them a career, that they are entitled not to bother with many of the classical ways we think about law, and especially the more complicated ways of thinking about it. This is unfortunate because the Internet offers new examples of laws normativity, which may enrich legal theory, while legal theory can look back to centuries of conceptual developments that may help cyberlawyers handle their challenges with shifting power structures and modalities of control. In particular, it would seem relevant, if not critical, for legal theorists to look to the Internet to see how such new fundamental developments in the law may illuminate the way we think of legal systems. It also would seem relevant, if not vital, for those concerned with the governance of cyberspace, who reflect on how Internet activities are, can and should be regulated, to look to classical legal theory to start from fundamental reflections about what law and a legal system are. However, these relationships have hardly been touched upon. Admittedly, many assertions have already been made about the existence of non-state law on the Internet. (1) Nevertheless, anyone making such a claim--that there is law outside the state--bears the burden of proof of what law might be when it is unconnected with government and where it may then be found. (2) This burden is not yet met, or at least not met fully, by those who have previously made claims of the existence of non-state law on the Internet. This Article, then, seeks to do just this: come up with a workable definition of law for legal systems outside the state, apply this definition to two particular instances of normative systems on the Internet, and see what we can learn from it. Seen from a different perspective, the Article combines a central theme of cyberspace regulation, namely the idea of transnational private orderings, and a central theme of legal theory, which is the question of the identity of a legal system. …
Publication Year: 2007
Publication Date: 2007-09-22
Language: en
Type: article
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Cited By Count: 5
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