Private Law and State Making in the Age of Globalization
Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 06-09
Abstract
The rise of post-national entities, such as the institutions of the European Union and of free-trade regimes, bears no obvious relation to the traditional pillars of western private law (mostly contracts, torts, and property doctrines). The claim of this article is that the global diffusion of private law discourse contributes significantly to the emergence of new centers of authority in the global arena. The article tests the impact of private law arguments in three contexts - the growing legitimacy of regional human rights adjudication, the consolidation of the institutions of the European Union, and the higher binding force of international investment treaties. Private law gains popularity in global legal discourse when its most centrifugal features are emphasized (individual autonomy, horizontal dispersion of authority, indifference to governmental institutions). Once popular, however, private law discourse also evokes centripetal arguments (aspiration to internal coherence, uniformity in adjudication) and therefore paves the way to new centers of public, vertical power. Most noticeably, private law discourse provides regional or global institutions with a patina of distributive neutrality, and therefore facilitates the endorsement of ideologically laden institutional developments.
