Are Private Actors Able to Produce Law?

Abstract

Networks of private actors develop and administer rules to regulate the conduct of their members. These private regimes enjoy varying degrees of autonomy from states and from international law. Some, such as the private norms related to lex mercatoria, the Internet, sports, and finance, have gained importance and density. These private legal networks can aid in the enforcement of state law but also can work independently of or even against it. This paper analyses the rationale of some private legal regimes and reveals their differences from state law. It shows that a significant number of actors are regulated by private legal norms that often ignore domestic legal systems. Some authors believe that private legal regimes have already eclipsed state law in importance. Also presented are thoughts on how legal theory might best approach private legal regimes.