Interpersonal Human Rights and Transnational Private Law
34 Pages Posted: 29 Oct 2016
Date Written: October 27, 2016
Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns of grave transnational wrongs. But both the conventional way of analyzing these encounters through choice of law (or conflict of laws) rules and the emerging strategies to address the inadequacies of these rules — through either devising exceptional means for extraterritorial application or extending vertical rights to nonstate actors — are rooted in a statist paradigm, which fails to capture the interpersonal crux of these grievances. In this Essay we argue that this categorical mistake relies on an implicit misguided, albeit prevalent, misconception of private law as essentially statist and paradigmatically libertarian. We claim that a more careful analysis of our private laws can help by distilling private law’s normative DNA, which is neither statist nor libertarian. This DNA is premised instead on a profound commitment to reciprocal respect to self-determination and substantive equality. Because this commitment is the jus gentium of our private laws, it can and should be understood as a manifestation of our interpersonal human rights, which should function both as a premise for criticizing domestic rules and as the foundation of aggrieved parties’ standing vis-à-vis those who wronged them.
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