Private Law Theory

ABSTRACT
For decades, theorizing postcoloniality in law has remained captive to the framework of international law with a focus on distributive justice. This approach, while important, has treated the individuals at the heart of postcolonial struggles – the farmer, the miner, the factory worker – as macroeconomic abstractions rather than as rightsholders. In this Article, I challenge this orthodoxy by arguing for a paradigm shift: from international to private law, and from distributive to interpersonal justice. I argue that the daily injustice the farmer, miner and factory workers face, often at the hands of transnational corporations, are most immediately a matter of contract, property and tort law (eg, Nestlé v Doe, 593 US 628) rather than merely a distribution question in international law.

The marginalization of people’s routine exploitation by transnational corporations is a byproduct of the fixation on the unequal distribution of wealth between nations in international law scholarship, including Third World Approaches to International Law (TWAIL). However, the failure to recognize private law’s postcolonial potential stems from a foundational error in private law theory as well: the relegation of concerns like systemic inequality (and postcoloniality) to the public sphere as distributive questions. In doing so, the dominant view of private law subjects is one that is artificially insulated from the power imbalances of the global economy and hence completely fictional. In this Article, I offer a more robust conception of the private law subject focusing on real people who are constituted by and situated within these neocolonial power structures. Thereby, I reconceptualize private law not as a tool that entrenches existing inequalities, but as an instrument for postcolonial transformation.

I demonstrate this postcolonial potential of private law in two critical areas in the context of transnational corporate activity. First, I explore the adjudicatory function of private law, arguing that private rights of action, such as tort claims under the Alien Tort Statute, provide a crucial forum for victims of corporate human rights abuses. These rights treat them as rightsholders against the corporations, enabling them to confront corporate executives by being able to tell their story in court. This is a unique avenue that public law or political struggles cannot subsume with their focus on state responsibility. Second, I delve into private law’s ethos of protecting substantive equality. I argue that by centering the marginalized individuals in business decisions – treating the sweatshop worker, for example, not as a remote externality but as a central stakeholder – private law can actively dismantle the exploitative structures of the global economy through emerging laws like those mandating human rights due diligence.

By shifting the focus away from the abstract distribution of wealth to concrete questions of interpersonal respect, I restore the individual to their rightful place at the center of postcolonial futures. It is a future where the law finally serves, in the famous words of Salvador Allende, ‘the miner in Cardiff[,] the fellah in Egypt [and] the cocoa farmer in … Ivory Coast’ (UN Doc A/PV.2096).

Bose, Debadatta, Postcolonial Private Law (July 31, 2025). Forthcoming, Brooklyn Law Review, volume 91.