Private Legal Systems: What Cyberspace Might Teach Legal Theorists

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 jacing 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 ofprivate 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. . Senior Research Fellow, Faculty of Law. Geneva University. This Article was written during a postdoctoral research stay at the Lauterpacht Research Centre for International Law, Cambridge University, 2005-2006. The Swiss National Science Foundation and the Holcim Foundation for the Advancement of Academic Work provided support for this research. The author wishes to thank Professor Matthew Kramer for his invaluable guidance in preparing this Article. 1 SCHULTZ: PRIVATE LEGAL SYSTEMS Published by Yale Law School Legal Scholarship Repository, 2008 PRIVATE LEGAL SYSTEMS