Tuesday, July 27, 2010

The 18th International Congress of Comparative Law--Workshop on Private Law Theory

This week individuals from all over the world participated in the 18th International Congress of Comparative Law. The program agenda is rich and varied. Equally interesting are the general and national reports produced for the Congress. These reports are available for download and are worth reading.  Of particular interest to some may be the general reports on international law in domestic legal systems, complexity of transnational sources, corporate governance, and  Religion and the Secular State - Interim Reports.pdf.

National reports mirror the major areas covered in the general reports, including complexity of transnational sources, the role and practice of legal education, consumer protection, recent private international law codifications,  corporate governance, age discrimination, protection of foreign investment, internet crimes and corporate criminal liability. The reports considering national approaches to the question of whether human rights are universal and binding are worth considering.  They include the following reports:
 A very exciting portion of the Congress was the Workshop on Private Law Theory, organized by Ralf Michaels and Fernanda Nicola, which took place Wednesday July 28, 2010, The Workshop Program follows:
XVIIIth International Congress of Comparative Law
Private Law Theory - A Workshop

Wednesday, July 28, 2010
9:00 am – 5:00 pm
American University Washington College of Law,
4801 Massachusetts Avenue, NW, Washington, DC 20016, Room 603

The current crisis of public law, and of the state, has reinvigorated interest in private law and its theory. Scholars from all over the world are invited to share their views and perspectives, so debates that have often been national or regional can be linked and a global perspective may be possible. We would like to thank participants to provide us with “scraps” to facilitate our conversations. Most of the participants will have a chance to briefly present their ideas in one of the various panels. Participation in the workshop is CLOSED and please note that you can participate in this event ONLY if you have been included in the program or received permission by the organizers. We envisage a maximum of 50 participants selected on the basis of the work submitted. The meeting will include breakfast, lunch and a small closing reception, please check the program online. For any other detail please contact Cleo Magwaro. . . . Organizers: Ralf Michaels, Duke University School of Law/ University of Pennsylvania, USA . . . ; and Fernanda Nicola, American University Washington College of Law, Washington D.C. . . .

8:30-9:00 am Registration and Continental Breakfast
9:00 am Opening Remarks
     Ralf Michaels (Duke University School of Law/ University of Pennsylvania, USA)
     Fernanda Nicola (American University Washington College of Law, USA)

9:10-10:20 am “Can there be private law?”
The realist and post-realist critique suggests that the idea of private law is incoherent. What then could still qualify as private law, as opposed to public law on the one hand, mere custom on the other?
     Aditi Bagchi (University of Pennsylvania Law School, USA)
     Bénédicte Fauvarque-Cosson (University Panthéon-Assas, Paris II, France)
     Bianca Gardella Tedeschi (University of Piemonte Oriental, Italy)
     Sylvia Kang’ara (University of Washington, Seattle, USA)
     Souichirou Kozuka (Gakushuin University, Japan)
     Luke Nottage (Sydney University, Australia)
     Chair: Dan Wielsch (University of Cologne, Germany)

10:20-11:30 am, “Private Law Reasoning”
Is there something specific about private law reasoning? And what is it? What are challenges for private law reasoning today?
     Jorge Esquirol (Florida International University College of Law, USA)
     Patricia Kameri Mbote (University of Nairobi, Kenya)
     Peter Oh (University of Pittsburg, School of Law)
     Sjef van Erp (Maastricht University, Netherlands)
     Richard Wright (Illinois Institute of Technology Chicago-Kent College of Law, USA)
     Chair: Daniela Caruso (Boston University Law School, USA)

11:30-11:50 Coffee Break

11:50-1:00 “Private Lawmaking”
Can private actors make law? What role do the rules play that they create? How do they relate to the official law of the state?
     Richard Buxbaum (UC Berkeley School of Law, USA)
     Amy Cohen (Ohio State University, Moritz College of Law, USA)
     Kathleen Gutman (Catholic University of Leuven, Belgium)
     Jeff Redding (Saint Louis University School of Law, USA)
     David Snyder (American University Washington College of Law, USA)
     Dan Wei (University of Macau, School of Law, Macau)
     Chair: Franz Werro (Georgetown University Law School, USA)

1:00 Lunch

1:20- 2:20 Keynote Speech
      Keynote speaker: Ernest Weinrib (University of Toronto, Canada)
     Commentators: Michele Graziadei (University of Turin, Italy)
     Isabel Jaramillo Sierra (Los Andes University, Colombia)

2:20-3:30 “Private Law and Globalization”
If all law was once public state law, does decline of the state signify the rise of private law? How does private law relate to globalization?
     Larry Catá Backer (Penn State University, USA)
     Anna Gelpern (American University Washington College of Law, Washington D.C.)
     Lukas Heckendorn Urscheler (Swiss Institute of Comparative Law, Lausanne, CH)
     Luca C.M. Melchionna (St. John’s School of Law)
     Florian Rödl (Frankfurt University, Germany)
     Dai Yokomizo (Nagoya University, Japan)
     Chair: Teemu Ruskola (Emory University School of Law, USA)

3:30- 3:50 Coffee Break

3:50-5:00 “Where do we go from here?”
     Yuki Asano (Gakushuin University Law School, Japan)
     Donald Earl Childress III (Pepperdine University, USA)
     Cally Jordan (Duke Law School, USA & University of Melbourne, Australia)
     Amr Shalakany (The American University in Cairo, Egypt)
     Markus Wagner (Miami University School of Law, USA)
     Dan Wielsch (University of Cologne, Germany)
     Chair: Susan Carle (American University, Washington College of Law, USA)


The "scraps" produced for the Workshop provide a fascinating glimpse at the cutting edge of academic movements in private law theory.  They point to the likely scope and character of policy issues that will shape legal and political discourse for the coming decades.  It is not surprising that many scraps touched on integration and pluralism in private law.  For example, there was a suggestion of a double question built into pluralism and private law touching on the realization of plural values in people's lives and the activation and control of plural actors to private law making.   Another suggested the opposite movement in European codification of private law as it moved from an economic tool for the internal market to a method for constructing a European demos. Another looks to the ideological underpinnings of the standard definition of Islamic law as a disciplinary field and arguing that the traditional position  was based on a dominant historiography that was a modern invention--an argument that has substantial implications for the movements for return to indigenous law in Africa, among indigenous people and in Latin America. 

Another group of scraps focused on the public/private divide in law.  One suggested the difficulties of insulating private law from moral and policy objectives usually reserved for public law.  Another looked to the consequences of the privatization of public law in dispute resolution, and its impact on theoretical reformulations of the concept of private law.  Another focused on the revolution in legal harmonization as it moved from a  focus on simple horizontal harmonization among states, to consensus of norms among the community of states to its current phase of harmonization between public and non-state governance actors.  Another considered movements toward straddling the public/private divide through non-judicial dispute resolution mechanisms. Still another considered the "public" inherent in private law, suggesting private law as a place where conflicts of values are encountered.  Another suggested that the character of private law must be changing as public actors become more aggressively involved in private market activities as non-sovereigns, and that the increasing importance of public actors making private law raises a distinct set of challenges. Another looks at the public-private divide in the context of constitutional protection of property in Africa.  Another looks at internal legal pluralism within a domestic legal order by suggesting its scope in policy debates about law between legislature and courts in Japan.  Another argues that legal globalization, based on the comparative method, pits incentives toward convergence against national resistance to protect identity.  Another looks to the phenomenon of privatization of traditional government functions and its effects on the role of private law, the legitimacy of its use, problems of accountability and emerging institutional models that proceed from private law regimes.

Another group considered questions of theory. One suggested the death of private law theory in one of its great sources--judicial decisions--and the anemic effort to transpose private law theoretical foundations to non-judicial dispute resolution venues. Another looked at private law theory through the lens of the soft law-hard law debate, suggesting that some of the assumptions underlying soft law discourse undermine its usefulness, and looking back to the notion of law before the state.   Another looks to the under development of theory reflecting differences in the legal epistemologies of the self under the foundational norm structures of different legal and religious traditions.  Another approaches theory from the perspective of traditional categorical distinctions in law  among property, contract, torts and unjust enrichment, positing interdisciplinarity as a means of yielding superior functional results  for private law considered as an integrated set of related disciplines.  Another looks to the return of a pure private law as a formalist, non-political, and non-contextual enterprise, as a basis for the retention of the rationality of private law even as its contemporary moorings in the nation-state and democratic legitimacy are abandoned in favor of transnationalization.  Still another considers issues of legitimacy of private law making in the absence of the democratic legitimacy conferred by public law frameworks.  Another posits that the common private core of private international law theory is its trans cultural aspect of self organization, the common legal core of private international law theory is its reflection on legal forms and concepts, and its common theoretical core must necessary be meta-theoretical.  Another seeks the moral foundations of private law and an interactive justice that must necessarily animate both public and private law. 

Still another group considered private law in the context of development issues.  One suggested the difficulties for development where the ideologies of private law are carried over to developing states.  Another looked to the influence of Anglo-American legal thought on the doctrinal development in Africa and its effects on the constriction of an African private law. Another considers private law as a mechanism for corrective justice and a break on state power, illustrating its effects with a look to alternative dispute resolution in China.

Others looked at the implications of challenges to classical private law theory for specific substantive areas of law.  One focused on the Europeanization of contract law, its coherence, relation to private lawmaking and connection to globalization.  Another looked at the contract-tort divide in Western and non-Western legal traditions as a source for further development of private law theory. Another explores consumer law in Australia to suggest that the policy implications of public law have effectively expropriated significant portions of the private element in consumer law. Another looks to tax law as a basis for the position that law ought to be more collaborative as it becomes more hybrid in character.  Another looks to movements in European property law harmonization as a conflict point for common and civil law conceptions of property.  Another starts from the ideology of conflicts of law to suggest that the "law" element of private law must be emphasized in order to retain the internal coherence of the system of law unalterably tied to nation states; beyond law might be governance, but it ought not to be considered a welcome immigrant into the terrain of law.

These approaches suggest the extent of dynamism in private international law.  A complex interweaving of globalization, migration, and changes in patterns of human organization has produced a change in the foundations on which both law and the state have sat comfortably for a century or so.  The rise of contracts with regulatory effect--the transformation of the private relations of individuals from object of territorially based law systems to subject, that is, to governance system in its own right has played a large role in the production of this dynamic state.  So has the rise of neo-medievalism, a shift not seen in law for centuries, in whcih law (or governance) shifts out of the state and reacquires its autonomous character.  But that autonomous character is now polycentric--it exits quite vigorously in law-state systems and also now in social norm systems. What clearly emerges is that though the state is far from finished, and though private law--or its social norm cousins (governance residing outside of state based law systems)--is far from acquiring a definitive form and framework, the old established consensus of the nature and legitimacy of power, and the constitution of governance collectives, has been fatally destabilized.  What will emerge remains to be seen, but whatever its form it is likely to be far more fractured institutionally (that is, as formally constituted) than it was before, though perhaps far more likely to harmonize and converge within new "families", not of law  but of governance.   

The workshop also served as a  forum for the work of the private law theory initiative.
The PLT initiative aims to constitute a network of scholars reflecting the theoretical foundations and future developments of private law. The idea was born spontaneously in 2009 among a transnational group of scholars. PLT will build a forum for cross-cultural brainstorming what private law could mean in the 21st century. PLT embraces different theoretical backgrounds (liberal theory, social justice theory, deliberative theory, systems theory, economic analysis, critical theory, deconstruction, etc.) and different fields of law (contract law, property law, comparative law, competition law, corporate law, IP law, etc.).
Private Law Theory, What is PLT?

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