Philosophical Foundations of Private International Law
Michael S. Green (ed.) et al.
Published:
2024
Online ISBN:
9780191949371
Print ISBN:
9780192858771
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Philosophical Foundations of Private International Law
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Roxana Banu
Pages
323–345
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Published:
June 2024
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Banu, Roxana, 'What Do We Owe to Each Other in Private International Law? Moral Contractualism and Transnational Justice', in Michael S. Green, Ralf Michaels, and Roxana Banu (eds), Philosophical Foundations of Private International Law, Philosophical Foundations of Law (
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Abstract
While private international law has always understood the choice-of-law question as one of justice, it has constantly oscillated between focusing on state-centred or individualistic perspectives on justice. State-centred theories premised on state sovereignty or state interests focus on our transnational interactions as collectivities. The justice of inter-personal interactions is not their focus, since those interactions are viewed as trigger points for conflicts of state sovereignty or national legislative policies. Individualistic theories focus on abstract notions of the will or autonomy. They focus only on the private law relationship, on very abstract interests, and on a principle of freedom as independence in which we are interested instrumentally, as the only means of achieving our own freedom as independence. This chapter argues that neither state-centric nor individualistic theories in private international law are adequate because they ignore an important relational justice value of respect for each other as equal justificatory authorities. I argue for an alternative, deeply relational perspective according to which private international law must enable and sustain valuable relationships of mutual recognition between people in the transnational domain. This is achieved when only those choice-of-law principles are adopted which cannot be reasonably rejected by people who were motivated to find principles for the general regulation of transnational behaviour that others, similarly motivated, could not reasonably reject. It begins to construct this alternative perspective by reference to several analytical building blocks drawn from Thomas Scanlon’s moral contractualism and builds upon this framework with insights from Simone Weil.
Keywords: moral contractualism, transnational justice, conflict of laws, private international law, relationality, moral justification
Subject
Private International Law and Conflict of Laws
Collection: Oxford Scholarship Online
Roxana Banu, What Do We Owe to Each Other in Private International Law? In: Philosophical Foundations of Private International Law. Edited by: Roxana Banu, Michael S Green, and Ralf Michaels, Oxford University Press. © Roxana Banu 2024. DOI: 10.1093/oso/9780192858771.003.0016
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