Abstract:
This article discusses axiological interferences of conceptions of justice associated with the nation-state in epistemological projects on transnational commercial law. It argues that the justice beliefs underlying classical legal positivism, which make us see law exclusively in state law, constitute an obstacle in our search for the rules and regimes that best fulfil the fundamental requirements of the rule of law. This is illustrated by focusing on one of the more polemical areas of this field – consumer protection – which provides a particularly clear illustration of the expansion of formal law in the twentieth century. The specific focus of the article is on the resolution of small cross-border consumer disputes. The study shows that international consumer protection requires a strict application of the provisions of a national law, even when the application of transnational non-state law would be more appropriate to attain the core political ideal that the rule of law seeks to further. This, it is argued, is due to mistaken conceptions of justice.
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Schultz, Thomas, How Conceptions of Justice Associated With the Nation-State Obstruct our View on the Possibilities of Transnational Commercial Law. King’s Law Journal, Volume 25, Number 3, December 2014, pp 349-369.
First posted 2015-01-07 13:28:54
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