The discussion examines the idea that because of its relatively unique nature, commercial law has the distinct ability to evolve and function in the absence of a central coercive authority. While law of a non-commercial nature generally requires the backing of a state through which to derive its efficacy, a great deal of commercial law as it exists today evolves often in the absence of a single coercive authority, shaped largely by market forces outside the purview of any one state power. To this end, we look primarily at transnational commercial law, specifically at what is commonly understood as the new law merchant. It is the central contention of this paper that commercial law stands apart from other forms of law in that it is uniquely equipped to generate norms in situations where a single legislative power is notably not present, as it is largely impacted by the choices and behaviour of individual economic actors. We examine the notion that the manner of interaction implied by commercial intercourse involves a higher degree of overall engagement. This we term ‘high engagement’, which we divide into two elements: repetition and game creation, which with reciprocity, works in tandem to produce identifiable legal norms and the subsequent compliance with them. In Part I, after presenting a brief overview of the idea of reciprocity and spontaneous law theory, a more detailed explanation of the notion of engagement is offered. In Part II, we set out exactly how high engagement facilitates the development of and compliance with legal norms. Finally, the conclusion this paper reaches is that this element of high engagement, a salient characteristic of commercial interaction, plays a decisive role in the ability of commercial law to evolve and function in the vacuum of a central legislative authority.

The discussion examines the idea that because of its relatively unique nature, commercial law has the distinct ability to evolve and function in the absence of a central coercive authority. While law of a non-commercial nature generally requires the backing of a state through which to derive its efficacy, a great deal of commercial law as it exists today evolves often in the absence of a single coercive authority, shaped largely by market forces outside the purview of any one state power. To this end, we look primarily at transnational commercial law, specifically at what is commonly understood as the new law merchant. It is the central contention of this paper that commercial law stands apart from other forms of law in that it is uniquely equipped to generate norms in situations where a single legislative power is notably not present, as it is largely impacted by the choices and behaviour of individual economic actors. We examine the notion that the manner of interaction implied by commercial intercourse involves a higher degree of overall engagement. This we term ‘high engagement’, which we divide into two elements: repetition and game creation, which with reciprocity, works in tandem to produce identifiable legal norms and the subsequent compliance with them. In Part I, after presenting a brief overview of the idea of reciprocity and spontaneous law theory, a more detailed explanation of the notion of engagement is offered. In Part II, we set out exactly how high engagement facilitates the development of and compliance with legal norms. Finally, the conclusion this paper reaches is that this element of high engagement, a salient characteristic of commercial interaction, plays a decisive role in the ability of commercial law to evolve and function in the vacuum of a central legislative authority.

The discussion examines the idea that because of its relatively unique nature, commercial law has the distinct ability to evolve and function in the absence of a central coercive authority. While law of a non-commercial nature generally requires the backing of a state through which to derive its efficacy, a great deal of commercial law as it exists today evolves often in the absence of a single coercive authority, shaped largely by market forces outside the purview of any one state power. To this end, we look primarily at transnational commercial law, specifically at what is commonly understood as the new law merchant. It is the central contention of this paper that commercial law stands apart from other forms of law in that it is uniquely equipped to generate norms in situations where a single legislative power is notably not present, as it is largely impacted by the choices and behaviour of individual economic actors. We examine the notion that the manner of interaction implied by commercial intercourse involves a higher degree of overall engagement. This we term ‘high engagement’, which we divide into two elements: repetition and game creation, which with reciprocity, works in tandem to produce identifiable legal norms and the subsequent compliance with them. In Part I, after presenting a brief overview of the idea of reciprocity and spontaneous law theory, a more detailed explanation of the notion of engagement is offered. In Part II, we set out exactly how high engagement facilitates the development of and compliance with legal norms. Finally, the conclusion this paper reaches is that this element of high engagement, a salient characteristic of commercial interaction, plays a decisive role in the ability of commercial law to evolve and function in the vacuum of a central legislative authority. / Law, Faculty of / Graduate

L’eau constitue un élément naturel fondamental dans la constitution des communautés humaines qui se sont regroupées autour d’elle. Ces sociétés de l’eau se sont organisées en fonction de la ressource qui fonde les liens juridiques entre leurs membres. L’on remarque alors l’existence d’une solidarité écologique qui lie les individus entre eux, et conduit à l’émergence de règles de droit en fonction des pratiques mises en œuvre au sein de ces communautés. Généralement qualifiées de coutumes, ces règles sont spontanées dans le sens où ses promoteurs en sont également les récepteurs, et sont transmises à l’échelle d’un groupement identifié qui assure leur pérennité. Les usages de l’eau désignent alors tant les utilisations qui sont faites de la ressource, que les règles de droit qu’elles induisent. La généralisation d’un droit commun à vocation uniformisatrice du système juridique français conduit à marginaliser l’existence de systèmes de droit traditionnels. Pour autant, certains territoires ruraux appliquent encore des règles spontanées et coutumières dans le cadre de l’exploitation de la ressource en eau, à des fins d’irrigation ou de pisciculture. S’opposent alors le droit coutumier et le droit commun qui s’appliquent à l’eau. Ces usages sont alors confrontés aux règles propres à la préservation de la propriété et à la protection de l’environnement. Bien que leurs finalités diffèrent radicalement, le droit spontané contribue à la réalisation des objectifs du droit de l’environnement dans la mesure où il participe à une gestion équilibrée et durable de la ressource en eau. Le renouvellement des formes juridiques des règles traditionnelles permet ainsi d’envisager la coexistence de ces deux ordres normatifs sur certains territoires ruraux dans la perspective de consacrer un pluralisme juridique. / Water is a fundamental natural element in the formation of human communities that have gathered around it. These water societies are organized according to the resource that bases the legal links between their members. We notice the existence of an ecological solidarity that binds people together and leads to the emergence of rules of law based on the practices implemented within these communities. Generally referred to as customs, these rules are spontaneous because their promoters are also the receivers, and are transmitted on the scale of an identified group that ensures their sustainability. The uses of water then designate both the uses that are made of the resource, and the rules of law they induce. The generalization of a common law with a unifying purpose of the French legal system leads to the marginalization of the existence of traditional systems of law. However, some rural areas still apply spontaneous and customary rules for the exploitation of water resources for irrigation or fish farming purposes. Customary law and the common law that applies to water seem to be opposed. These uses are then confronted with the rules dedicated to the protection of property rights and the environmental preservation. Although their purposes differ radically, the spontaneous right contributes to the achievement of the objectives of environmental law insofar as it contributes to a balanced and sustainable management of the water resource. The renewal of the legal forms of the traditional rules makes it possible to envisage the coexistence of these two normative orders on certain rural territories in the perspective of devoting a legal pluralism.