Whither the private in global governance?

Schwöbel, Christine E. J.
October 2012
International Journal of Constitutional Law;Oct2012, Vol. 10 Issue 4, p1106
Academic Journal
In international legal scholarship, global governance ideas are being framed exclusively with recourse to public law—at the expense of private law. In this article, I question this prioritization of public law and the obscuring of private law conceptions and methodologies. It appears that the obscuring of private law is occurring in theoretical rationalizations of ideas for holistic legal frameworks, at the same time as private law is growing strongly in prominence in the international sphere. Indeed, it can be claimed that globalization is largely driven by private law. Suggestions for the accountability and transparency of transnational corporations, private military companies, and bilateral investment treaties are exemplary sites of how public law solutions, under the flag of “accountability,” are being applied to private legal relations. Global governance and its inherent multifaceted und multifarious nature has the properties to capture private law impulses; instead it is framed in a way to obscure them. In this, global governance is being aligned, largely by international lawyers, with other similar public law frameworks—including global constitutionalism and global administrative law. I argue that private law conceptions and methodologies should be taken seriously within global governance discourse. Private law includes some attributes which, recognized and allowed to flourish, could realize a progressive potential.


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