Tradition: The Legitimacy Gene

Maritime transport and cyber space as major playgrounds of digitalization have a tradition of self-management. The general maritime law, at the beginning and throughout most of its history of development, partially involves compilations of mercantile customs. The universal application of this law is built upon voluntary consents rather than coercive force. Tetley described the maritime law as an “ius commune from earliest time to present” due to this voluntary nature.²⁸⁵ This statement corresponds with the discoveries of archaeologists. The Rhodian Sea Law, which is dated from 500 B.C to 300 B.C and is recognized as the earliest known maritime law,²⁸⁶ is law that was not deliberately designed or drafted by legal professionals but was established through customs and usages.²⁸⁷ Although the Rhodian Sea Law has codified rules with regard to the navigation of vessels and dispute resolutions between merchants, which were published in the form of a written code, legal historians speculate that the Rhodians merely committed the practical customs and common usage of the sea established by their ancestors and fellow Greeks to writing instead of designing the law from scratch. In addition, the superior position of the Rhodian Sea Law in the Mediterranean vested not by the Rhodian State but by the excellency of this rule as compared to other contemporary sea laws.

The self-management phenomenon is obvious in middle-age Europe. Three local laws govern the maritime affairs in the Atlantic coasts, the Mediterranean, and the Baltic, namely, the Rôles

283 Scott, Colin, Fabrizio Cafaggi, and Linda Senden, The conceptual and constitutional challenge of transnational private regulation, Journal of Law and Society 38.1 (2011), pp 2-3.

284 Scott, W. R. Institutions and or, pp 2-3usand Oaks)." (2001).

285 Tetley, William. “The General Maritime Law-The Lex Maritima.”, Syracuse J. Int'l L. & Com. 20 (1994), p.105. Tetley claimed that “the general maritime law is a ius commune, is part of the lex mercatoria and is composed of the maritime customs, codes, conventions and practices from earliest times to the present, which have had no international boundaries and which exist in any particular jurisdiction unless limited or excluded by a particular statute.”

286 Healy, Nicholas J., and David J. Sharpe, Admiralty, Cases and Materials, West Publishing Company, 1979, on p. 3.

287 Reddie, James. An historical view of the law of maritime commerce, 1841, on p. 67.

d'Oléron, the Consolato del Mare, and the Laws of Wisbuy. These laws greatly differ from modern laws because they are formed through the judgements made by merchant judges on classic cases and are based on general law principles that were considered relevant to future incidents of the same kind.²⁸⁸ During this period, despite the lack of strong central governments to unify and implement the laws in Europe, maritime laws developed and grew through the spread of maritime commerce and naturally expanded from one port town to another. The Rôles d'Oléron, for example, was first created in the island of Oleron, west of Rochefort, France. Before the kings and queens in France and England formalized them, the laws were already adopted by the seaport towns of Normandy and Brittany and transplanted to Damme, Bruges, and later in London.²⁸⁹ Molloy commented that like the Rhodian Sea Law,

“they (The Rôles d'Oléron) were esteemed for the reason and equity found in them, and were applied to the case emergent.”²⁹⁰ The private aspects of maritime laws declined for a few centuries with the growth of nationalism but was revived again in the nineteenth century because all kinds of private organizations and associations were founded by lawyers and commercial men. Today, private institutions, such as the Baltic and International Maritime Council (BIMCO), the CMI, and the International Chamber of Shipping, play a vital role in the lawmaking. Arbitrations courts and tribunals, including the London Maritime Arbitrator’s Association and the Society of Maritime Arbitrators, are processing more cases than state courts.²⁹¹

The Internet, which was a creation of the US government project ARPANET in the 1960s, went out of governmental control since it was opened to general citizens. The word cyberspace becomes popular in the 1990s and describe the largest uncontrolled domain that is distinct from the regulated “outer-space.” John Perry Barlow, who was a so-called “cyberlibertarian,”

published “A Declaration of the Independence of Cyberspace” when the US Congress enacted

288 Tetley, William. “The General Maritime Law-The Lex Maritima.” Syracuse J. Int'l L. & Com. 20 (1994), on p.111.

289 Paulsen, Gordon W. “Historical Overview of the Development of Uniformity in International Maritime Law.” Tul. L.

Rev. 57 (1982), on p.1070.

290 Molloy, Charles, De Jure Maritimo Et Navali: Or, A Treatise of Affairs Maritime, and of Commerce. John Walthoe, 1744.

291 Maurer, Andreas, The Creation of Transnational Law–Participatory Legitimacy of Privately Created Norms, (2012), at 3.

Maurer compared the maritime caseload between the British state courts and the LMAA, and the result shows an obvious preference for the arbitration courts.

the Communications Decency Act²⁹² in 1996 to clean illegal and harmful materials on the Internet. In this writing, he wrote:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone…

You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.

We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.²⁹³

The libertarians won, and the act was struck down in the landmark case of the American Civil Liberties Association v. Reno.²⁹⁴ The court decides that the act violated the US Constitution’s First Amendment. Nevertheless, this decision did not make the cyberspace in the wild west. Without the intervention of the state, the Internet solved the problem on its own.

The World Wide Web Consortium, a quasi-autonomous and non-governmental organization, developed a standard where browser software can be voluntarily incorporated to filter harmful contents on the Internet.²⁹⁵ For many scholars, this event opens a new era of regulation in the cyberspace: “code as law.”²⁹⁶ This credo recognizes that codes can function as law in the cyberspace but are not strictly the only “law.” Lessig stated the regulations on the Internet developed from four modalities: law, social norms and values, market incentives, and Internet architecture, including software code.²⁹⁷ This taxonomy was adopted by legal scholars in developing the regulations on the Internet. Later research also focuses on elaborating the

292 Title 47 USCA, 223(a) and (d), The Communications Decency Act 1996 was introduced on January 30, 1995, passed by Congress in December 1995, and signed into law by President Clinton in January 1996.

293 BARLOW'S, JOHN PERRY, DECLARATION OFINDEPENDENCE FOR CYBERSPACE, (1996), at https://xabuxe.ga/ytg.pdf.

294 American Civil Liberties Association v. Reno, 929 F. Supp. 824, 837 (E.D. Pa. 1996).

295 Tambini, Damian, Danilo Leonardi, and Chris Marsden, Codifying cyberspace: Communications self-regulation in the age of Internet convergence, Routledge, 2007, on p.3.

296 See Mitchell, William J. City of bits: space, place, and the infobahn， MIT press, 1996; also, Lessig, Lawrence. Code:

And other laws of cyberspace. ReadHowYouWant. com, 2009. Lessig asserted that code is law for code shapes behaviors but certainly not the sole regulator on the Internet.

297 Lessig, Lawrence. Code: And other laws of cyberspace. ReadHowYouWant. com, 2009.

interactions of the vectors that Lessig specified.²⁹⁸ Looking closer into Lessig’s regulatory model, three out of the four modalities are rooted in non-state factors. Social norms and values, market incentives and economics, and software codes are results of private interactions.

Therefore, although a pure self-regulation on the Internet may not been realized, the Internet is a place where private regulation is holding a dominant position.

This doctoral thesis believes that the past history of private regulation in the maritime transport and the Internet grants private regulation in these areas, if not full, a certain degree of legitimacy. The regulation of private actors helped with the establishment of the normative criteria in these specific areas, and therefore collected a normative base to provide itself with legitimacy. For instance, standard form contracts were seen as reusable contracts for daily business. However, when new variations occur, the providers of these contracts are naturally vested with the exception to create and explain new terms. The private regulator can exist long enough that its legitimacy is regarded as a natural thing. Naturally, the prerequisite for this opinion is that legitimacy is not perceived like in the eyes of positivists. Suchman interpreted legitimacy as social credibility and acceptability. He further asserted that legitimacy is ‘‘a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions.”²⁹⁹ Based on this conception, the tradition of private regulation in both branches resulted to a legitimacy gene.