The Anti-Network: Global Private Law, Legal Knowledge, and the Legitimacy of the State

Abstract

In this article, I build upon research in one arena of global private law, the production of legal documentation for the global swap markets, to challenge the way both the utopic and the dystopic accounts describe private law beyond the State. I argue that these accounts stand on a set of anthropological assumptions or claims assertions about what this private law actually is, from insiders' point of view, about how it is interpreted and experienced in the real world - which for the most part go unexamined, untheorized, and undefended empirically. This matters because they also turn out to be, at the very least, seriously incomplete.

In particular, I want to complicate three views of the source of private law legitimacy that figure prominently in both defenses and critiques of private law: the view that law is an artifact of state power, the view that law enshrines a set of norms, and the view that law is a coherent system of one kind or another. In contrast, I will suggest that if one approaches these debates from the standpoint of the deceptively naive question, 'what is collateral, really, in the derivatives markets?', one begins to grasp a view of law as something very different from a body of norms. Global private law is also, I want to suggest, a routinized but highly compartmentalized knowledge practices. I will shorthand this description of global private law as the Anti-Network in order to contrast it to celebrations of global private law as a kind of networked knowledge, and an artifact of global social networks of various kinds.

From this perspective, debates about the threat of global private law to the legitimacy of the nation state need to be redirected to contend with a more accurate picture of global private law. If one understands private law beyond the State as a set of institutions, actors, doctrines, ideas, material documents of knowledge practices, one begins to see remarkable similarities between the technical workings of global private law and the nature of state work. The threat, if any, of global private law inheres therefore in the way it replicates and hence supercedes the state in practical, mundane, routine ways.