Private Law Theory

ABSTRACT
While private international law has always understood the choice-of-law question as one of justice, it has constantly oscillated between focusing on state-centered or individualistic perspectives on justice. State-centered theories premised on state sovereignty or state interests focus on our transnational interactions as collectives. The justice of inter-personal interactions is not their focus, since those interactions are viewed as trigger points for conflicts of state sovereignty or national legislative policies. Individualistic theories focus on abstract notions of the will or autonomy. They focus only on the private law relationship, on very abstract interests and on a principle of freedom as independence in which we are interested instrumentally, as the only means of achieving our own freedom as independence.

This chapter argues that neither state-centric nor individualistic theories in private international law are adequate because they ignore an important relational justice value of respect for each other as equal justificatory authorities. I argue for an alternative, deeply relational perspective according to which private international law must enable and sustain valuable relationships of mutual recognition between people in the transnational domain. This is achieved when only those choice of law principles are adopted which cannot be reasonably rejected by people who were motivated to find principles for the general regulation of transnational behavior that others, similarly motivated, could not reasonably reject. I begin to construct this alternative perspective by reference to several analytical building blocks drawn from Thomas Scanlon’s moral contractualism: the principle of a moral relationship based on mutual recognition and respect for each other’s moral equal moral standing, the notion of a generic, but fully contextual standpoint and the centrality of justification for a notion of justice. I build upon this framework with insights from Simone Weil, to unpack the demandingness but also the fragility of any attempt to capture alternative standpoints and demands for justice in the context of transnational interactions.

Banu, Roxana, What We Owe to Each Other in Private International Law – Moral Contractualism and Transnational Justice (January 18, 2022) in Roxana Banu, Michael Green, Ralf Michaels (eds), Philosophical Foundations of Private International Law (OUP), Forthcoming.