1. The disciplinary outcome of the emphasis on the concept of effectiveness rather than legal validity was a flight away from law and into social and political sciences well captured by the adoption of the term “governance”.

2. For a short guide to the literature, see Guilherme V Vilaça, “Transnational Law, Functional Differentiation and Evolution” (2015) 6 E-Pública 1.

3. For a similar point in the context of a discussion on soft law, see Matthias Goldmann, “We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law” (2012) 25:2 Leiden J Intl L 335 at 336.

4. D’Aspremont has recently written a monograph against the (parallel) dissolution of the concept of law in public international law. Therein he articulated a new formalist approach to the sources of international law in order to preserve “the ability of international law to provide identifiable commands to its addressees.” See J d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011) at 29.

5. Schultz endorses an historical, not essentialist, reading of such expectations.

6. But see the book-length article by John Linarelli, “Analytical Jurisprudence and the Concept of Commercial Law” (2009) 114:1 Penn St L Rev 119. He claims to have been the first one to offer a comprehensive analytic jurisprudential take on international commercial law. Although he argues that legal positivism cannot pull it off (and thus we should resort to legal pluralism). Suggesting that Teubner has provided the first conceptualization of lex mercatoria as an autonomous normative system that does not systematically depend on nation-states or is tied to conceptions of common good, see Armin v Bogdandy & Sergio Dellavalle, “The Lex Mercatoria of Systems Theory: Localisation, Reconstruction and Criticism from a Public Law Perspective” (2012) 4:1 Transnational Legal Theory 59 at 60.

7. Schultz, T, Transnational Legality: Stateless Law and International Arbitration (Oxford: Oxford University Press, 2014) at 39.CrossRefGoogle Scholar

8. Schultz refers here to Kerchove & Ost’s distinction between a system’s irrelevance on the one hand and its existence and internal efficacy on the other one. Ibid at 88.

9. Recall that this was Hart’s move too in the famous The Concept of Law where he replaced the question “what is law?” for “what is a legal system?”. See Guilherme V Vilaça, “Why Teach Legal Theory Today?” (2015) 16:4 German Law Journal 781 at 787-88.

10. Schultz himself acknowledges the circularity of the argument: if we choose positivism then law is posited and therefore necessarily institutionalized.

11. Notice that these are empirical questions in the same way that for Hart the adoption of the internal point of view always remained an empirical assertion.

12. Schultz, supra note 7 at 132.

13. Schultz, supra note 7 at 135.

14. Ibid at 136.

15. Ibid at 146.

16. Ibid.

17. Ibid at 158.

18. Ibid at 167ff. For the original statement, see Fuller, LL, The Morality of Law (New Haven; London: Yale University Press, 1969).Google Scholar This view is premised upon the idea that the function of law is to guide behaviour.

19. See Fuller, supra note 18 at 162.

20. This move heavily relies on Matthew Kramer’s work. See Schultz, supra note 7 at 171.

21. Ibid at 175.

22. Ibid at 131.

23. Ralf Michaels, “The True Lex Mercatoria: Law Beyond the State” (2007) 14:2 Indiana J Global Leg Stud 447 at 458 suggests that this could otherwise make lex mercatoria an autonomous legal order but “such a legal system is not in existence, and whether it ever will be seems doubtful.”

24. Gilles Cuniberti, “Three Theories of Lex Mercatoria” (2014) 52:2 Columbia J Transnat’l L 369 at 399. As he argues the choice of non-national rules is probably only half of this number because the International Court of Arbitration factors in the Convention on Contracts for the International Sale of Goods which is an international convention.

25. See Linarelli, supra note 6. Indeed, Cuniberti, supra note 24 at 394, quotes a study claiming that no single rule unique to lex mercatoria exists.

26. See Michaels, supra note 23.

27. Schultz, supra note 7 at 137.

28. Ibid.

29. d’Aspremont, supra note 4 at 204ff. He justifies the need to update Hart’s restrictive assumption because the latter was articulated for domestic contexts.

30. Schultz, supra note 7 at 137.

31. Roger Cotterrell, “What Is Transnational Law?” (2012) 37:2 Law & Soc Inquiry 500 at 507.

32. In similar vein, Simon Roberts, “Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of the Legal Domain” (1998) 42 J Leg Pluralism & Unofficial L 95 at 98 had already written, “So much of our sense of what law ‘is’, is bound up with, and has been created through, law’s association with a particular history—early on, the emergence of secular government in Europe; later the management of colonial expansion.” For a defence of the relationship between law and the state, see Simon Roberts, “After Government? On Representing Law Without the State” (2005) 68:1 The Modern L Rev 1 at 13ff. H Patrick Glenn, “The State as Legal Tradition” (2013) 2:4 Cambridge J Int’l & Comparative L 704 suggests we look at the state as legal tradition.

33. Such an omission is hard to justify because monographs on transnational legal theory are hardly common.

34. Detlef von Daniels, The Concept of Law from a Transnational Perspective (Farnham: Ashgate, 2010) at 106.

35. Culver, Keith & Giudice, Michael, Legality’s Borders: An Essay In General Jurisprudence (New York: Oxford University Press, 2010) at 112–13.CrossRefGoogle Scholar

36. For a typology, see Cotterrell, supra note 31.

37. Schultz, supra note 7 at 151.

38. KW Abbott et al, “The Concept of Legalization” (2000) 54:3 International Organization 401.

39. See Gralf-Peter Calliess & Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Oxford: Hart, 2010). Furthermore, their model for legitimating transnational normativity—rough consensus and running code—could adequately include all relevant members of a normative community.

40. In the same way legal orders disallow “fight clubs” but accept boxing. See Jack Anderson, The Legality of Boxing: A Punch Drunk Love? (New York: Routledge, 2007).

41. This sentence is taken from Vilaça, supra note 2 at 43.

42. For a short account of the historical trend towards the privatization of the regulation of Internet, see Michael Hutter, “Global Regulation of the Internet Domain Name System: Five Lessons from the ICANN Case” in Karl-Heinz Ladeur, ed, Innovationsoffene Regulierung des Internet: Neues Recht fur Kommunikationsnetzwerke (Baden-Baden: Nomos) 39.

43. Vilaça, supra note 2 at 41 [emphasis in the original, footnotes omitted].

44. Schultz, supra note 7 at 144.

45. Actually Schultz’s whole discussion on ICANN and its resort to self-enforcement is misleading. The ICANN can enforce its own decisions because it was given control over the Domain Name System (DNS) root. This means that in order to cancel or transfer a domain name, ICANN has everything it needs to do so. Furthermore, and more importantly it is authorized to do it. We should not forget that ICANN has replaced IANA as the agency in charge of administering domain names and its authority is based on two contracts with the United States Department of Commerce. For details, see Andrew D Murray, “Regulation and Rights in Networked Space” (2003) 30:2 JL & Soc’y 187.

46. Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman [1995] ECR I-4921.

47. Case C-519/04P, Meca-Medina, [2006] ECR I-6991.

48. Case C-126/97, Eco Swiss, [1999] ECR I-3055, par. 37. On the challenge the EU legal system poses for international arbitration awards, see Phillip Landolt, “Limits on Court Review of International Arbitration Awards Assessed in light of States’ Interests and in particular in light of EU Law Requirements” (2007) 23:1 Arb Intl 63. For a more detailed analysis of these vertical controls, see Vilaça supra note 2 at 33-40.

49. See Vilaça supra note 2 at 43ff.

50. Swiss Federal Court, 15 March 1993, Gundel v Fédération Equestre Internationale. For background, see Lorenzo Casini, “The Making of a Lex Sportiva by the Court of Arbitration for Sport” (2011) 12:5 German Law Journal 1317.

51. It as if we cannot abandon the modern habit of thinking in terms of solid structures according to a materialist philosophy rather than the softness and liquidity of postmodern thought where events emerge and the main political problem is “potentiality”. Schultz’s quest for a rigorous concept of legality that then becomes a matter of clarity is, to my mind, tributary of such difficulties.

52. This is particularly clear in Culver & Giudice’s book that recovers the positivist idea of “institutional force”. See Culver & Giudice, supra note 35 at 117.

53. Daniels, supra note 34 at 161 [emphasis added].

54. Culver & Giudice, supra note 35 at 126.

55. Ibid at 151 [footnotes omitted].

56. For instance Gunther Teubner, “Global Bukowina’: Legal Pluralism in the World Society” in Gunther Teubner, ed, Global Law Without a State (Aldershot; Brookfield: Dartmouth, 1997) 3 at 4.

57. Ibid. See also Teubner, G, Constitutional Fragments: Societal Constitutionalism and Globalization, (Oxford: Oxford University Press, 2014)Google Scholar and Gralf-Peter Calliess & Moritz Renner, “Between Law and Social Norms: The Evolution of Global Governance” (2009) 22:2 Ratio Juris 260.

58. This has to be understood within the systems theory’s focus on the reduction of social complexity. The stabilization of normative expectations is necessary to prevent constant revision of beliefs or learning. See Guilherme V Vilaça, “From Hayek’s Spontaneous Orders to Luhmann’s Autopoietic Systems” (2010) 3 Studies in Emergent Order 50.

59. This concerns the performance, not the function, of law.

60. See Calliess & Renner, supra note 57 at 268-69.

61. See Amstutz, Marc, “Mechanisms of Evolution for a Law of the Future” in Muller, Sam et al. , eds, The Law of the Future and the Future of Law (Oslo: Torkel Opsahl Academic EPublisher, 2011) 395.Google Scholar

62. Schultz, supra note 7 at 39-43.

63. Concurring see Goldmann, supra note 3 at 361ff.

64. GV Vilaça, Law as Ouroboros (PhD thesis, European University Institute, 2012) [unpublished].

65. Fuller, supra note 18 at 157.

66. This means that there is only a pyrrhic overcoming of traditional analytic jurisprudence eschewal of history and empirical analysis. One could ask, for example, whether comprehensiveness is not something we expect in legal systems. For example, and relating to one of Schultz’s and the literature’s favourite examples—the ICANN—one should keep in mind that its powers are limited to either cancel or transfer domain names but if a party wants compensation it has to resort to domestic courts.

67. This is problematic as the whole approach to the concept of law is often understood to be a Western pursuit, whose categories were then exported. See Jean-Louis Halpérin, “The Concept of Law: A Western Transplant?” (2009) 10:2 Theor Inq L 333 (2009) and Menski, WF, Comparative Law in a Global Context: The Legal Systems of Africa and Asia (New York: Cambridge University Press, 2006) ch 3.CrossRefGoogle Scholar

68. Iwao Satō, “Judicial Reform in Japan in the 1990s: Increase of the Legal Profession, Reinforcement of Judicial Functions and Expansion of the Rule of Law” (2002) 5 Social Science Japan Journal 71. See also Eric A Feldman, “Legal Reform in Contemporary Japan” (2006) No. 07-17 Public Law and Legal Theory Research Paper Series.

69. Xingzhong Yu, “Legal Pragmatism in the People’s Republic of China” (1989) 3:1 J Chinese L 29 at 31-32.

70. Confucius, The Analects (New York: Oxford University Press, 2008) bk 2, ch 3.

71. For an introduction to guanxi, see Yanjie Bian & Lei Zhang, “Corporate Social Capital in Chinese Guanxi Culture” (2014) 40 Research In the Sociology of Organizations 417 at 424ff.

72. On “rule of law” debates in China and the “Socialist legal system with Chinese characteristics”, see Albert HY Chen, “Toward a Legal Enlightenment: Discussion in Contemporary China on the Rule of Law” in The Rule Of Law: Perspectives From The Pacific Rim (Washington: The Mansfield Center for Pacific Affairs, 2000) 13; Randall Peerenboom, “Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China” (2002) 23:2 Mich J Intl L 47; and Mo Zhang, “The Socialist Legal System with Chinese Characteristics: China’s Discourse for the Rule of Law and a Bitter Experience” (2010) 24:1 Temple Intl & Comp LJ 1.

73. In addition to the sources quoted in the previous footnote, see Yu supra note 69 and Pitman B Potter, “The Chinese Legal System: Continuing Commitment to the Primacy of State Power” (1999) 159 The China Quarterly 673.

74. Zhang, supra note 72 at 61 [footnotes omitted]. In this paper, Zhang documents comprehensively the ways in which the CPC controls the judiciary.

75. See Wejen Chang, “Classical Chinese Jurisprudence and the Development of the Chinese Legal System” (2010) 2 Tsinghua China Law Review 207 at 270-71 stating that the usual view according to which legal decisions in traditional China were arbitrary and unpredictable—thus undermining rule of law—is wrong since legal decisions were often written by low-class bureaucrats who had no incentives to depart from existing laws and precedents. See also Jonathan K Ocko & David Gilmartin, “State, Sovereignty, and the People: A Comparison of the ‘Rule of Law’ in China and India” (2009) 68:1 The Journal of Asian Studies 55 at 61. But see the sources in Zhang, supra note 72 at 4 emphasizing China’s lack of respect for procedural justice.

76. Among many other examples, see H Feizi, Han Feizi: Basic Writings (New Press: Columbia University Press, 2003) at 128 [footnote omitted], section 50: Eminence in Learning, “But if you make your laws and regulations clear and your rewards and punishment certain, it is like applying rouge, powder, and paint to the state.”

77. Zhang, supra note 72 at 40.

78. It is useful to contrast the view described here with Luhmann, N, Law as a Social System (Oxford; New York: Oxford University Press, 2008)Google Scholar on law as an autopoietic system and the account of allopoietic systems in Marcelo Neves, “From the Autopoiesis to the Allopoiesis of Law” (2001) 28:2 JL & Soc’y 242.

79. For a theory of legality that emphasizes not rules but plans, see Shapiro, SJ, Legality (Cambridge; London: The Belknap Press of Harvard University Press, 2011).Google Scholar

80. Fuller, supra note 18 at 210.

81. Calling attention to the fact that the persuasiveness of Fuller’s legality criteria depends on how much one accepts his particular understanding of the function of law, see Jan Klabbers, “Constitutionalism and the Making of International Law: Fuller’s Procedural Natural Law” (2008) 5 NOFO 84 at 101.

82. Froese, Katrin, Ethics Unbound: Chinese and Western Perspectives on Morality (Hong Kong: The Chinese University Press, 2013)Google Scholar at 25 attributing this view to Julia Ching.

83. See for both quotes Karyn L Lai, “Confucian Moral Thinking” (1995) 45:2 Philosophy East and West 249 at 249. One should not forget that the guiding value of social order in Chinese thinking is harmony. For an overview of Chinese thinking, see Schwartz, BI, The World of Thought in Ancient China (Cambridge; London: Belknap Press, 1985).Google Scholar

84. For the relationship between the assumption of universality of thinking and empire, see Dabashi, Hamid, Can Non-Europeans Think? (London: Zed Books, 2015) at 36–37.Google Scholar