Soft Law Regulatory Regimes as alternative to nation State Legal System Yury Fogelson, National Research University Higher School of Economics (Moscow, Russia), professor Sovereign national state is closely related to the legal monism, that is, to the unity of the legal system within its territorial borders. Italian author Paolo Grossi in his "History of European law," writes: "A sovereign state is a rigid monist; it attributes the status of law only to those acts made by itself and tolerates no competing production of law within its borders" 1 The modern state is considering the legal system as a means of social control on its territory. The power of the modern state is based on the unity of the legal system. Connection of the legal system and the power and government (in the broadest sense of the word) in the state of Westphalian type is inseparable. In essence this connection is the core of the Westphalian system. In this context, I would like to draw attention to the long and actively discussed the distinction between the two concepts: the Anglo-American Rule of Law and the German Rechtsstaat. Both of them include the priority of the Law over the State. However, the Rule of Law as opposed to the Rechtsstaat does not contain the word "state" and thus emphasizes the existence of Law regardless of the State. In terms of the Rule of Law main function of Law is to create a predictable order in society, and not to serve as a tool by which the sovereign support public order (rule by law). I repeat, these are well-known theses to remind the modern nation State is still largely remains the Westphalian design, even where it was designed by the Rechtsstaat. At the same time, the design of Rule of Law is much older than the Westphalian system and allows you to talk about the Law, as an institution, completely independent from the State. Accordingly, the legal monism in terms of public order is not a fixture of the legal system. However, the legal monism is important not only as an element of the Westphalian design of public life. Monism is also very convenient to provide legal certainty. Without legal certainty predictable order is impossible neither in the Westphalian construction of a sovereign nation State, nor without this design. Certainty is the basis of predictable social order. Without legal certainty, there can be not only a Rechtsstaat but the Rule of Law. Therefore, in the process of destruction of the Westphalian system, what we are witnessing, or legal monism should remain, or the other tools that provide legal certainty have to replace it. Here I examine, first, the processes going on in the legal system in parallel with the destruction of the Westphalian construction of sovereign nation State, and, 1 Grossi P. A History of European Law. English translated (2010) by Laurence Hooper, Wiley-Blackwell, Chichester, West Susssex, UK, P.34
secondly, the mechanisms by which may be provided legal certainty in the absence of a Westphalian type sovereign nation State. Since about 60 years of the last century law-making function of the Westphalian State began to give system failures because incredibly increased volume and complexity of the social, economic, political transactions. These failures were immediately reflected in the literature, and led to the creation of new legal theories. They assigned the main role not to law-making but enforcement part of the nation State legal system. For the Anglo-American common law system that was small change - the model of Ronald Dworkin 2 and Critical Legal Studies theory 3 only moved the focus from the process of creating of rules for their enforcement. But the emergence in the continental legal orders the concepts of rational legal discourse of Robert Alexy 4, and social systems theory of Niklas Luhmann 5, in which the legal nature of transactions is recognized by the courts, was a significant innovation. However, these theories are poorly explained what happens with the legal systems as enforcing part of the Westphalian legal system very quickly began to malfunction. Using the widely-used terms of IT technologies, a phenomenon occurring in modern legal systems, can be safely called DDoS attack of social transactions to a sovereign nation State. Public life generates such a number of queries to the law that Westphalian legal system, with its apparatus and rigid working rules simply cannot withstand their attack. There was also at one time appeared and was widely advertised autopoietic legal theory 6, in which recognition of transactions (communications) as legal does not require the submission of any legislator or court. However, this theory does not explain how the legal certainty can be maintained in its communicative environment. In parallel with attempts to describe the possible working mechanisms of legal system in a collapsed Westphalian State today creates a new regulation. In particular, any set of rules created by non-state communities, who are fully look like rules of law, but they are not sanctioned by the State and are backed by State coercion. These rules are called "soft law" 7, they are created and modified much easier than formal legislation. 2 Dworkin R. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977. 3 See for example Mark Kelman A Guide to Critical Legal Studies, Harvard University Press, 1987 or Bruschke J. Deconstructive Arguments in the Legal Sphere: An Analysis of the Fischl/Massey Debate about Critical Legal Studies // Argumentation and Advocacy. Volume: 32. Issue: 1. Publication Year: 1995. 4 Alexy R. A theory of legal argumentation: the theory of rational discourse as theory of legal justification. Translated by Ruth Adler and Neil MacCormick, Oxford, Clarendon Press, 1989. 5 Luhmann N. Law as a Social System. Translated by Klaus A. Ziegert, Edited by Fatima Kastner, Richard Nobles, David Schiff, and Rosamund Ziegert, Oxford, Oxford University Press? 2004. 6 Autopoietic law a new approach to law and society / ed. by Gunther Teubner, Berlin, New York, de Gruyter, 1987. 7 In one of the studies I found mention of the fact that for the first time this term was used by Lord Mc Nair during his tenure as President of the European Court of Human Rights, but the original statement on the matter of Judge Mc Nair I have not found (see Jiang L. An Evaluation of Soft Law as a Method for Regulating Public Procurement
It is necessary to note the following. One of the favorite terms for description of social norms now appears regulation 8. However, this term is how wide is just as uncertain. It is necessary to consider it under a small microscope. Certainly, one of the types of regulation is common, long-known Law, sanctioned by State. Another type of regulation are just as well-known for a long time moral standards. The differences between them were interested by scholars for a long time. We can say that today, thanks to the work of Henri Bergson 9, Herbert Hart 10 and others, we can point out the main differences between these two systems of social norms. Moral standards govern much more fundamental, deep value systems in the society, while the legal rules governing the current social life. So the moral norms are not subject to conscious purposeful change, while the law should be changed, adapting to rapidly changing life. These are two fundamental differences between moral and legal norms define their other differences from each other. The process of the emergence and enforcement of moral norms is distributed, so to say "smeared" by the whole of society or social group, while the legal rules are created and used with the use of a centralized state apparatus of coercion, if we are talking about the State law. For the same reason, the content of moral norms is much less certain than the content of legal norms. Moral standards support the overall value characteristics of a given society or group, and the rules of law support a specific predictable order. Finally, I have to emphasize a very important connection between these two types of social norms. Order created by legal rules will be treated in the community only when it corresponds to an existing system of values, which is supported by moral norms. We can deduce from this consideration four key characteristics of the rules of Westphalian legal system. 1) Law this is a holistic systematic body of rules, based on a common set of principles. 2) The content of the rules must be sufficiently certain to create a predictable order, and for that these rules should be, first, publicly available and published, and secondly, in a society should be professionals, that are created and applied these rules. 3) Legal rules must specifically change, adapting to changes in society. from a Trade Perspective, Thesis submitted to the University of Nottingham for the degree of Doctor of Philosophy July 2009 URL: http://etheses.nottingham.ac.uk/700). 8 Discussion about the word regulation in context of legal theory see for example Morgan B. Yeung K. An Introduction to Law and Regulation: Text and Materials. Cambridge University Press, 2007. 9 Bergson H. The Two Sources of Morality and Religion / Translated by R. Ashley Audra and Cloudesley Brereton, McMillan and Co, Ltd, London, 1935, P.1-20. 10 Hart H.L.A. The Concept of Law. / Second edition. Clarendon Press, Oxford, 1994, P.185-213
4) Creation and enforcement of these rules is provided by an organized authority center; in the case of Westphalian legal system in such a center is the State. We return to the soft law. This is one of the types of regulation, but it is very similar to the normal state law. I want to emphasize that soft law has all of the above-listed four attributes of law - so it is called law. Its difference from the state law only in the fact that an authoritative center that creates and enforces of soft law rules, is not the state. It is important to emphasize that non-state nature of the centers, ensuring the creation and application of soft law does not detract from the effectiveness of these rules, as having a very effective enforcement mechanisms to ensure reduction of these rules in place that do not require cumbersome formal procedure in court. These systems are gradually replacing the rules of the legal system of a sovereign state where it no longer cope with the influx of transactions. So soft law mechanisms gradually come to replace the legally binding norms. However, this regulation is polycentric. It destroys the legal monism and it seems that legal certainty and, therefore, predictability and stability of the social order destroy with the monism. Enforcement mechanisms to ensure the effectiveness of soft law norms are not controlled by the means of ensuring the Rule of Law or better Rechtsstaat, which are available in modern states. Moreover, the problem of human rights and fundamental freedoms, as people there are no remedies against the soft law mechanisms. And despite the fact that is not yet known examples of direct violation of the fundamental rights and freedoms by any soft law bodies, it is simply because the process of replacing the state law rules of soft law has not gone too far. The order in the modern society at its heart is until controlled by the sovereign state legal system. However, I believe the situation will change soon and we will be faced with this phenomenon. But as long as we have no means to fight it. I have already said that there are at least two ways to ensure the effectiveness of regulatory mechanisms: a distributed and organized. Mechanisms for creating and enforcement the soft law rules are of course not distributed but organized. Rules are created and modified not by themselves "the people", and by the specific centers of regulation. Pressure to enforcing the rules of soft law is also no stigma but creating of authoritative centers through specific interventions, the most famous of which is the open method of coordination (OMC) 11. Organized nature of the creation and enforcement of norms of soft law creates, in my view, the prerequisites for preserving regulatory certainty even in a polycentric system of regulation. 11 See for example Trubek D. M. and Trubek L. G. Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination / European Law Journal, Vol. 11, No. 3, May 2005, pp. 343 364.
In order to understand how it is possible to ensure legal certainty in a polycentric legal system, look at the development of the law in historical perspective. Legal monism is a relatively recent invention of European nations. It is only 500 years old, while the modern legal system is much older. In the first half of the second millennium BC legal systems were polycentric. The church, secular communities, such as a city, Kings, community of merchants were made their own law 12. Moreover, the effect of these rules was not territorially demarcated as today. The man was both a merchant and a citizen and a Christian. And all these systems of rules are quite compatible with each other in the same community, creating a predictable order, while human nature required concentration of power. Thus, for the life of the European legal polycentricism is not something entirely new. Legal monism was a product of a much greater degree of people's desire for personal power than the demand in a stable and predictable order. At that time, a stable order in the polycentric organization of law was achieved because of all centers of authority have relied on the researches of legal rules made by European universities 13. In the most prestigious at the time the University of Bologna jus canonicum was created for the church, and jus commune for secular use. Jus commune used to create a variety of secular legal systems. Both sets of legal rules - jus canonicum and jus commune - were based on the codification of Justinian, which was seen as the Ratio Scripto. Thus, in the Middle Ages, the problem of uncertainty and instability of regulation does not arise. Despite the fact that the polycentrism of regulation created a risk, it significantly reduced so that all the centers were made its legal systems on one basis. Very important to emphasize the fact that the basic principles of regulation have not been established some authority - whether secular or church. In respect of the application of these principles had social consensus, based on universal respect for, first, to the Roman culture, and, secondly, to the universities in which these systems were created. It is no overstatement to say that the basic principles upon which created all the then legal systems had public approval. And it is a general public acceptance was quite real. In a society were existed the real bearers of approval - the universities. It differs from a social contract, which began to speak later in the Enlightenment and beyond. If you translate it into the language of the power, it can be said that the society participated in the realization of power. Endorsing the basic principles of the social order, a society thus gave the consent of the political power in its observance. Intermediaries in this same separation of powers were medieval universities. 12 Berman G. J. Law and Revolution. The formation of Western Legal Tradition. / Harvard University Press, 1983, P.522 13 Ibid. P.120-165
Today, such centers of regulation are not universities but well-known think tanks. For example, in the area of financial regulation are: Basel pool of organizations which are developing international standards of the sound financial systems, grouped around the Bank for International Settlements 14, the OECD, IMF, World Bank, FATF, etc. Some of them are developing soft law norms, others provide their effectiveness, and some do both. These rules are rapidly being introduced into the practice of regulation, despite the fact that they anymore are not legally binding. But it is easy to imagine that at some point the requirements of the global financial law may conflict with the rules of the GATS (WTO), which regulates international access to financial services 15. For example, the requirements on insurance of bank deposits can be considered as non-tariff restriction of crossborder market access banking services. I believe in a polycentric soft law regulation required certainty and predictability of social order must be resolved in a manner similar to the way it was resolved in the Middle Ages. All soft law activity of these centers should be based on a unified system of common principles. However, we cannot now definitely say that we have at our disposal something like Corpus Juris Civilis, which had at the disposal of the medieval jurists. But we have something similar, I believe. It is for example, the Universal Declaration of Human Rights. For Europe, there is the Convention for the Protection of Human Rights and Fundamental Freedoms. That is, fundamental rights and freedoms may become the nucleus upon which the soft law regulation of all those centers should be based. In such a situation it is important that structures for the resolution of disputes should appear. However, today there are such structures to resolve disputes between citizens and sovereign States. But soft law regulation is carried out over the states, it is indifferent to the sovereignty and therefore disputes with States in this situation meaningless. But the resolution of the dispute between the citizen and regulatory center, for example, the OECD is currently impossible. Resolution of the dispute between the OECD and the WTO is impossible, etc. Thus, if we agree with the above arguments, it is possible that in a few years we will see a world in which the order will not be provided in a particular territory, but to a certain field of activity. Bearers of regulation that will ensure adequate and predictable order will be the major think tanks. The effectiveness of regulation will be achieved not by force of state bureaucracy, and by other means of pressure, not less effective, as already mentioned the OMC. The inevitable inconsistencies and contradictions that will arise at the intersection of various bodies of rules will be settled on the basis of the principle of the inviolability of human rights and fundamental freedoms, possibly with the addition of some other. To do so will create a global mechanism for resolving disputes, but it is difficult to say whether it will be concentric or rather polycentric. 14 See www.biz.org 15 See for example Brummer C. Why Soft Law dominates international finance and not Trade / Journal of International Economic Law (2010), 13(3), P.627-628