A. A Global Legal Community?

B. The New Private Law Theory and the Global South

These thoughts came back to me when I opened “The New Private Law Theory” (NPLT), that pathbreaking new book put together by three admired colleagues.^{Footnote 4} One of the many traits of the book is its breadth that is not only methodological but also geographic. As the authors point out, while they “place the European and US legal traditions at the center,”^{Footnote 5} as concerns the EU; they draw “on all the major (ex-)member state legal traditions—a far broader collection than has previously been attempted—namely the English common law, along with the French, German and Italian civil traditions.”^{Footnote 6} Here, private law theory becomes transnational, at least to a degree.

Yet, that the authors call this “super-diversity” seems a bit hyperbolic—even in Europe, there are more than the five traditions they name. In reality, the book “bears a European understanding of what private law theory stands for,”^{Footnote 7} and that means, more precisely, Western European: An American selection of texts would look different, as would a selection of texts that would bring together the Global North and the Global South or focus on the relationship between Western, Central, and Eastern European countries.^{Footnote 8}

What does this European character mean for a project of general theory? Is? The authors are aware that such a restricted approach might be problematic:

In response, they suggest that “[t]he exclusion of other perspectives, in particular those of the Global South, but also from Eastern Europe, is not intended.”^{Footnote 10} This cannot mean that the exclusion is accidental—the authors are clearly aware of it and clearly did not try to avoid it. The German original of the text has “nicht bezweckt,”^{Footnote 11} which suggests a better translation would have been “not intentional,” but that helps only a little. Why was such inclusion not attempted in the name of “super-diversity”? Presumably, the answer follows from the authors’ own expertise and biographical background. Thus at least Stefan Grundmann, during the book launch symposium, “We are not Global South, we are not Asian, we speak from our own background and hope to start a broader discussion.” In the book, the authors proclaim that they are “fully aware of certain preconceptions they carry.”^{Footnote 12} Of course, none of us can transcend our own particular backgrounds and preconception; awareness of our own situatedness must be an advantage. But unfortunately, although they elsewhere argue for “a constant critical self-reflection of one’s own preconceptions,”^{Footnote 13} they do not tell us what exactly these preconceptions are. We may be able to extract some of these preconceptions from reading the text, but that, in all likelihood, will not by itself tell us whether the authors are actually aware of them.

This leads to a second question. The authors, aware of the geographically confined scope of their theory, suggest it “would then have to stand the test of acceptance by the . . . global legal community”^{Footnote 14} and hope “that a hermeneutic circle of rich and diverging inputs is opened.”Footnote ¹⁵ When the authors thus expressly place themselves in “the hermeneutical tradition,”^{Footnote 16} I assume they are not referring to the relation between a reader and a text, and not always on that between law and facts,^{Footnote 17} but instead of mutual observation, of cross-cultural communication, mutual understandings. But is there an actual circle? Publication of the book in English certainly enables broader readership outside of German-speaking countries, but even if the book finds readers outside the Global North—which undoubtedly it will, this does not yet create a circle. If the authors are here speaking to an audience in the Global South, they certainly do not name them, and they do not, at least at this stage, seem to rely on actual input from that Global South; that should come later.

The suggestion that the theory “would then have to stand the test of acceptance by the … global legal community” then raises a third question. Who is that “global legal community?” Does it even exist? Who belongs to it? How does it function, how does it communicate? The existence of a global legal community has often been postulated. Niklas Luhmann explained law as necessarily global, a subsystem of society—which he equally conceived of as global.^{Footnote 18} Mathias Albert, drawing on such theories, suggested juridification as a path towards organization of a world society.^{Footnote 19} Hauke Brunkhorst proposed that a global legal community could institutionalize democratic solidarity at the international level.^{Footnote 20} Klaus Günther suggested a “universal code of legality.”^{Footnote 21} In addition to such sociological theories—yes, all by German authors—there are specific legal suggestions. International arbitrators can be understood as a global legal community; they certainly are a global epistemic community.^{Footnote 22} And Harold Berman’s suggestions for a “World Law” rest on specific Catholic grounds and thus remind us of the original meaning of Catholic as all-encompassing.^{Footnote 23} These images of a global community are all, more or less, Northern images. Can they encompass the Global South?

Reading the book with such questions in mind, I found that the non-European world is present and hidden at the same time. It is present because much of the material presented, many of the theories discussed, have transnational materials. This is, indeed, almost unavoidable in a globalized world. However, the non-European world is hidden at the same time because it remains unaddressed, marginalized, and ignored.

This is not a particular shortcoming of this book; it is representative of much legal theory in general and certainly of much private law theory. What I sketch here should, therefore not be read so much as a criticism of the book in particular—nor overshadow its many strengths—but rather as a demonstration, in one example of the way in which a certain way of theorizing about private law universalizes Northern conceptions. In this regard, I take NPLT to be representative of private law theory in general, and my argument, sketchy as it may be, should be read as one about private law theory in general–its shortcomings, its need to pluralize, its potential.

C. Northern Cases

D. Northern Theories

Granted, the book uses these cases only as entries into its discussion of existing private law theories; it “starts from texts.”^{Footnote 43} Those texts, those theories, are drawn from Northern authors and inspired by Northern experiences. As the authors themselves say, “[t]his canon naturally represents a subjective selection of the three authors, all German but trained in looking beyond the legal discipline and into different legal orders in Europe and the world . . . .”Footnote ⁴⁴ Overall, the selection of texts, let alone their analysis and presentation in the twenty-seven chapters, bears a European understanding of what private law theory stands for. An American selection of texts would look different, as would a selection of texts that would bring together the Global North and the Global South, or focus on the relationship between Western, Central and Eastern European countries.”^{Footnote 45}What is Northern here is not, however, only the selection of the theories but also their treatment. Like the cases before, many of the theories discussed are stripped of their global and transnational elements.

Take, for example, the treatment of sociology and its—European—early heroes, Weber and Durkheim. The authors’ interest in Weber is interest in “contemporary society,”^{Footnote 46} which means, apparently, European society. Weber, of course, had a broader, more global view of different kinds of society, though with modern European society at the top of a hierarchy. His modern society is thus defined in necessary juxtaposition with non-European societies.^{Footnote 47} Where he praises adjudication in Europe, he does so in juxtaposition with what he calls famously—and problematically—kadi justice. Where he discusses Western legal-rational authority, this takes place in juxtaposition to—pre-modern or non-European—other types of authority. The problem is not that only, or predominantly, Western theorists are collected, and the problem is certainly not that Weber is included. The problem is that what is presented on Weber is confined to his work on European modernity, and his theory remains partly unexplained.^{Footnote 48}

Similarly partial use is made of other theories. Law and economics is largely, confined to its U.S. variant, which ignores both that variant’s not always healthy relations to the rest of the world—think of its impact on Latin America—and alternative economic approaches to law and development, inspired by Southern perspectives. Luhmann’s systems theory is discussed, but not the limits to its transfer to non-European societies, indeed even to the United States.^{Footnote 49} Transnational law, as developed by Jessup, is introduced but without reference to the Global South.^{Footnote 50} Concession contracts are discussed without the issue of exploitation. Global legal pluralism is discussed without regard to the origins of pluralism theory in colonial and postcolonial settings.

The Legal Origins approach is discussed at length,^{Footnote 51} but the countries discussed are all Northern countries; the critique is exclusively methodological: Selection of variables, downgrading of legal culture, downgrading of law. This is odd because the theory is colonial through and through.Footnote ⁵² At its origin lies the idea that economic progress can be explained as a function of the legal system and that colonies provide a particularly good testing ground because they were, allegedly, subject to a random distribution of common or civil law. That this distribution happened through imposition is not discussed, nor whether any consequences can be drawn on legal cultures more generally. In essence, common law and civil law are compared with regard to which of them was a better tool of colonization.

Other theories are used similarly. John Rawls is discussed as a general theorist, though many have pointed out that his theory of justices and political liberalism are really, in most ways, generalizations of a particular view of the United States. Amartya Sen, who was able to add important non-Northern perspectives to discussions of justice and liberalism, appears only as additional reading and with one rather unspecific sentence; he “opens up this picture to globalization, incremental improvements and pluralism.” And although we do learn that “even the fundamental political freedoms are dependent on economic power situations,”Footnote ⁵³ and “distribution of wealth is paramount,”Footnote ⁵⁴ implications for the Global South are not addressed.

E. Northern Issues

Not only the cases and the theories used are Northern, however. So are the issues—the questions made, the assumptions made. For example, the authors suggest that “[i]n a globalized world, it has even become more frequent that value conflicts play out in private law constellations.”^{Footnote 55} This seems plausible in more than one way. First, globalization increases the number of cross-country private law constellations and, therefore the number of profound clashes of values. Second, globalization has created a turn toward the private,^{Footnote 56} and value conflicts have followed suit. Why then restrict ourselves to value conflicts between the U.S. and Europe, as does the book? Why not the greater conflicts between Global North and Global South, or indeed those between the values of capitalism, on the one hand, represented to a large degree in private law,^{Footnote 57} and those of resistance? The restriction to U.S.-European relations betrays a somewhat limited view of globalization, limited both in geographical terms within the North and in ideological terms—decline of borders and of states.

One of these values is arguably the public/private distinction, and thus the existence of private law, itself? Although the distinction can be traced, in one way, back to Roman law,^{Footnote 58} its current form arose, arguably, in the eighteenth and nineteenth century Global North, though with differences between the United States and Europe.^{Footnote 59} It is, in this sense, peculiar to the Global North and its own history—even when “understood in a broad sense, encompassing questions of regulation and rule-setting in particular.”^{Footnote 60} And the distinction arises, no doubt not accidentally, during the heyday of colonialism—which itself was organized on the basis of much private law, starting with the private corporations established to colonize. It is, therefore, certainly of colonial interest as well but in ways very different from those discussed in the book.

Similarly confined is the discussion of private ordering—indubitably an important challenge to a state-based understanding of law.^{Footnote 61} The topic is discussed, but with references only to non-state law within Northern States. There is a discussion of Shasta County, the site for Ellickson’ theories, but not of Micronesia and other non-Northern areas where private ordering has long been observed. There are discussions of the diamond trade, but confined to the United States as in Lisa Bernstein’s studies, excluding global trade and indeed the problematic role of the diamond trade in Africa.^{Footnote 62} There are discussions of private law as represented by “Families, friends, firm” ^{Footnote 63} but no focus on Asia where these three categories have indeed been merged in the past.^{Footnote 64} This limited focus is relevant. In a state-based system, private ordering stands in some necessary relation to the state—it must be isolated from the state, perhaps even protected by the state. This means that the nature of the state must also change the nature of private ordering, and private ordering is likely to mean something different in other types of states.

What, finally, about the book’s own starting point—to “start from what law is?”^{Footnote 65} This legocentrism betrays a very Northern starting point. The authors are right, I think, to take law seriously, it is not taken seriously enough in many economic discussions of legal origins, and indeed in interdisciplinarity more generally.^{Footnote 66} At the same time, perhaps law, at least formal law, matters less elsewhere. And if so, a focus on law as a starting point must, from the start, make an analysis peculiarly Northern.

F. A Global Legal Community?

I have tried to demonstrate that the Global South is absent from the New Private Law Theory in two ways, one acknowledged and one unacknowledged. The acknowledged absence concerns the absence of voices from the Global South, be it private law theorists or be it other sources—case law, political statements, and the like. The book discusses Northern cases, Northern theories, and Northern issues. The authors, aware of this, wisely restrict their findings to Northern Society, though they find it possible that these findings could be expanded, and indeed invite reactions and dialogue from the Global South.

What could stand in the way of such dialogue is the second, unacknowledged absence of the Global South from the New Private Law Theory. Almost throughout the entire book, private law theories are presented without regard to the Global South. They are, thus, not only theories from the North, and about the North, and for the North, as is acknowledged. They also presume, albeit implicitly, that theorizing is possible without referencing the Global South. That would be possible, it seems, only if one of the assumptions were true: Either that the North can be thought of separately from the South, or that what is true for the North is true, by extension, also for the South. Either assumption, however, seems false. What I have tried to suggest is that Northern theory, almost regularly, was created in direct relation to the Global South, either in direct juxtaposition or at its expense. Northern theory either presumes or creates a difference between North and South. If this is so, then presenting such a theory without its Southern counterpart strips theories of necessary elements.

This is not the specific fault of the authors of NPLT; it is implicit in most of our legal thinking. NPLT presents these theories as they often preset themselves. NPLT merely carries this absence further. However, the incompleteness of private law theories bodes badly for their expansion to the rest of the world. Proposing to universalize such theories by expanding them to the rest of the world amounts to an accidental attempt of epistemological colonization.

This may explain that the absence of the Global South from private law that is acknowledged—the absence of Southern voices—may be harder to resolve than the authors seem to imagine. Quite possibly—and this is at this stage only speculation—theorists from the Global South would have very little to contribute that would be constructive, but also little interest in doing so. They can contribute to the Northern project by mimicking Northern voices, though it is not clear that they could do better what Northerners do on their own turf, so to speak. They can try to translate the Northern project to the Global South but will need to be wary of the risk of epistemic self-colonization. Or, of course, they can present specifically Southern critiques of the Northern projects of theories.

That latter project—and of course I am again speculating—might be the most interesting and fruitful one. It may be possible to uncover, far better and more meticulously than I can do here, the colonial origins of existing private law theory. Such research could add a new, external, critique to the existing internal critiques of private law theory—from legal realism to LPE— that remain within the Northern-modern project that they critique. Whether this is true would of course need to be demonstrated. And whether there are theorists of the South who are not only capable of but also sufficiently interested in such a project remains an open question. Perhaps—my last speculation—private law theory is just not sufficiently interesting outside its own Northern context.

How could a private law theory that remains essentially Northern communicate with the Global South? Ultimately, that remains to be seen. However, I see three strategies, only one of which is actually promising. The first is universalization—the hope that the new private law theory, although developed in the North, can nonetheless claim universal acceptance. A similar argument has sometimes been made for human rights. I assume this is what the authors have in mind when they suggest that their theory “would then have to stand the test of acceptance by the . . . global legal community.”Footnote ⁶⁷ But like with human rights, mere universalization of European thought is unlikely to be successful, whether empirically or normatively.

A second strategy is restriction—yielding the claim to speak for the world, explicit acknowledgment that the theory is made only for the Global North. We find hints of such a strategy when the authors acknowledge that their book may speak in particular to Western societies.^{Footnote 68} Such an approach appears attractively modest. It also seems to make more justifiable the restriction to Northern materials and Northern values. But it cannot ultimately convince, either. As I have tried to show, such a restriction is not possible in a global world except through partial amnesia—the North has been built in relation to the South, and its actions have an impact elsewhere. Isolation, even if only epistemic, is not possible.

A third strategy, then, is pluralizationFootnote ⁶⁹. This could mean what the authors envisage—the inclusion of non-Northern authors. However, if my suspicion is correct, such authors may be hard to find, at least if asked to participate in a project that is and remains, by its nature, specifically Northern. If private law theory is Northern, then pluralization to be meaningful must pluralize this concept itself. Such pluralism cannot be only methodological—a pluralism the authors espouse—but must also be epistemological and positional. We theorists must then accept the contingency of private law theory as explicitly Northern. We must be ready to engage seriously and nonhierarchically with radically different theories, including theories not of private law. We must be ready to listen without preconception. We must allow for, and theorize, the possible decoupling of non-Northern theories from an assumed universalization. But one can suspect that such a private law theory might have to substitute praxis for theory and norms for law. It might no longer be a theory of private law as such, but a theory of the particular role that the invention of private law has played in a specific place and time.

From this, a new, very different idea of a global legal community arises. We must give up the idea of a homogeneous concept of a global legal community and replace it with a radically pluriversal idea of a world of many worlds, with an acknowledgment of Global North-Global South tensions, of cultural pluralism with non-Western values, of economic inequality between North and South, for the epistemic inequality between quasi-universal Northern norms and laws and localized norms and laws from elsewhere, of neocolonial relations of control and extraction, most of which take place through private law relations. That community is infinitely more heterogeneous than the concepts presented in the beginning of this article, and indeed it is far more improbable. At the same time, it seems infinitely more attractive. Perhaps, against all odds, responses to this book will indeed, despite or because of concerns like mine, help bring such a community about.