In a far flung, free society, the federalist values are enduring. They call upon a people to achieve a unity sufficient to resist their common perils and advance their common welfare, without undue sacrifice of their diversities and the creative energies to which diversity gives rise.

This paper attempts to assess privately made law (or private lawmaking) as a kind of federalism, thus taking up a point floated briefly in an earlier article. A very questionable legitimacy is the main challenge for private lawmaking. Competition, or its governmental equivalent—federalism—may help legitimate what otherwise might appear to be an unseemly enterprise by which de facto laws are made outside the structures of democracy or any other government. Because private lawmaking happens without established structures and depends on ad hoc combinations of private actors, I refer to what occurs in the private realm as molecular federalism. James Madison envisioned the United States as a “compound republic,” and conceptualizing private lawmaking as molecular federalism follows his compound analogy. The metaphor of the molecule (as opposed to the atom) invokes the idea of a compound because private lawmaking can only occur as a cooperative effort of at least two actors, and usually many more. This figure thus recognizes that even privately made law is a social function.

Aside from serving as a template with which to assess the legitimacy of private lawmaking, federalism can also help uncover the dynamics of different kinds of private lawmaking. The complex of governmental and private relationships in a federalist system, which has received careful analysis for many decades, can show how different lawmaking entities—public and private—influence and react to each other. Further, as the scholarly treatments of federalism have shown, a federalist organization of government is hardly perfect. Bringing this learning about federalism to bear on private lawmaking can help reveal some of the strengths and weaknesses of allowing rule generation to reside in the private sphere.

Finally, the “compound” idea of the molecule and of federalism may be consonant with some of the German systems theorists’ emphasis on what they call “communications.” In fact, the notion of molecular federalism may be linked with the idea of “societal constitutionalism” suggested by David Sciulli and expounded by Gunther Teubner. This link is probably most apparent in Professor Teubner’s reformulation of Grotius’s dictum ubi societas ibi ius: “Lawmaking also takes place outside the classical sources of international law, in agreements between global players, in private market regulation by multi-national concerns, internal regulations of international organisations, inter-organisational negotiating systems, world-wide standardisation processes that come about partly in markets, partly in processes of negotiation among organisations.” This conception describes well at least the international aspects of private lawmaking and can be applied almost as easily to domestic private lawmaking too.

This paper does not aim at high theory; instead, it concentrates on the checks and balances, and the particular costs and benefits, associated with allocating power across a shifting hierarchy of public and private lawmakers. Still, this exercise can be seen as an early cut at some of the issues embedded in the “difficult empirical and normative question” that Professor Teubner poses: “How … political and autonomous social constitutionalisation” actually takes place. Because of strict space limitations, this paper considers the federalism of the United States and private lawmaking in the commercial or business sphere. Even within that scope, the paper is confined to a brief, essayistic treatment. It also omits some important international issues, including the kind of federalism or regulatory competition that arguably exists in Europe, as well as the complex analysis that would be required to put together the rules of private international law with the idea of molecular federalism.

This paper suggests that the dichotomy of anational law and state law is false. Although an anational law merchant would be theoretically possible, the true lex mercatoria we are currently observing is not such an anational law. Rather, it is an emerging global commercial law that freely combines elements from national and non-national law. This transnational law presents a far more radical challenge to traditional state-based conceptions of law than the idea of an anational law. It makes the distinction between anational law and state law that permeates the debate over law merchant simply irrelevant by transcending it. The true lex mercatoria marks the shift in global law from segmentary differentiation in different national laws to a functional differentiation. It is a law beyond, not without, the state.

In the remainder of these remarks, I will say something about Dr. Kinsey and his research. I will then contrast some of the early decisions of the Supreme Court of the United States on issues relating to homosexuality with the approach embraced more recently by the majority in Lawrence. My central thesis is not that Dr. Kinsey, or his Institute of Sex Research at Indiana University, single-handedly revolutionized the values of contemporary Western societies toward homosexuality or other sexual issues. But it is that Kinsey’s research profoundly shifted the debate in the United States and in other Western countries. Moreover, research within the area that Kinsey and his colleagues undertook at Indiana University should be seen as very important to the true fault line that exists in the world today. If progress is to be made in human civilization, it must come on issues such as gender equality, rights to divorce and contraception, and attitudes toward homosexuality. If the world is to become a more tolerant and safer place, this is where progress must be achieved. This is why Kinsey is important not only to America and its law. The subject matters of the research into human sexuality address an important fault line in our world and are therefore very important for the future of the planet and of our species.