À la croisée du droit et des normes sociales : l'évolution de la gouvernance mondiale

While the globalization of commerce brings up new challenges to legal theory, most legal scholars persist in having abstract discussions about antiquated positivistic and pluralistic concepts of law. In the meantime, scholars from other social sciences, such as economics, political science or sociology, did not hesitate as much to analyse the emergence of new forms of private and hybrid ?governance without government? from a functional perspective. Even though legal theory has much to learn from such functional approaches, they fail under one crucial aspect: They cannot uphold the analytical distinction between law and non-law, as they only focus on governance efficiency from an actor-based perspective that is blind to ?law?s own rationality?, which focus on the stabilisation of normative expectations in the society as a whole. Therefore, such functional approaches to the study of global governance need to be enhanced by elements borrowed from the systems theory of law by Niklas Luhmann. This will provide us with a conceptual framework to analyse the mechanisms of global governance regimes without ignoring their potential for ?legalisation?. Three examples (lex mercatoria, ICANN UDRP and corporate social responsibility) shall describe how new forms of legal regulation beyond the nation-state have been evolving over the last years. These examples will also allow to draw some preliminary conclusions about the role of law in the context of globalization, giving some directions for further empirical research.