Justification (and Justifiability) of Private Law in a Polycontextural World
| Author | Oliver Gerstenberg |
| DOI | 10.1177/096466390000900306 |
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Subject Matter | Articles |
JUSTIFICATION (AND
JUSTIFIABILITY) OF PRIVATE
LAW IN A POLYCONTEXTURAL
WORLD
OLIVER GERSTENBERG
European University Institute, Florence, Italy
INTRODUCTION
THE COMBINED trends of globalization and privatization have
intensified a long-standing debate over the role and the underlying
normative orientations of private law. To what extent can a modern
society, committed to providing a decent standard of citizenship even to dis-
advantaged social groups, rely on private law in order to promote democratic
goals?
In his article,1 Professor Teubner proposes what he calls a ‘strictly anti-
economic’ view of private law. To the extent that, in a massive retreat of
government and public law, ‘more and more social activities are taken over
by private governance regimes’, private law ‘should transform itself into a
constitutional law for global regimes of private governance’. The new con-
stitutional role of private law is to make concerns with justice and equality
re-emerge in the new private governance regimes (PGR) themselves – such
as contracting, technical standardization, professional rule production, etc.
Private law should show partisanship with those ‘discourses’ that are endan-
gered when unchecked economic or technical discourses overstep their
proper boundaries. Private law should map the limits of, and protect against,
‘totalitarian’ intrusions, the ‘constitutional rights’ of the ‘discourses’, which
are respectively involved in the process of private self-regulation; it should
prepare the ground for an ongoing process of ‘interdiscursive translation’
between discourses and enable this process to lead to a ‘fragile symmetry of
chances of translation’.
My aim in this comment is to explore three issues that I take to be crucial
to both Teubner’s article as well as to the whole contemporary debate on
SOCIAL & LEGAL STUDIES 0964 6639 (200009) 9:3 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(3), 419–429; 013780
06 Gerstenberg (jl/d) 3/8/00 1:48 pm Page 420
420
SOCIAL & LEGAL STUDIES 9(3)
private law and globalization. These are: (1) the question in what sense the
combined trends of globalization and privatization amount to a consti-
tutional challenge; (2) whether private law can meet this challenge; and (3) the
role of normative political theory within private law discourse. I will point
to what I take to be a blindness of insight in Teubner’s approach. Agreeing
with Teubner2 that private law should transform itself into a new consti-
tutional law of the newly emerging PGR, I will argue that the concepts of
‘interdiscursive translation’ or of a ‘fragile symmetry’ cannot bear the nor-
mative burden they are supposed to bear. This is the burden of explaining
why certain discourse constellations are criticizable for us – as addressees of
Teubner’s article and as citizens – as ‘asymmetric’ or as ‘totalizing, if not total-
itarian’. The dilemma is that in order to be able to carry this justificatory
burden, private law theory will have to admit a ‘re-entry’ of a normative idea
of democracy and of citizenship. But precisely this move seems to be fore-
closed by Teubner’s conceptual framework which leads him to stress the
mutual incommensurability of highly differentiated discourses. I will argue
that there is a way of reintroducing normative concerns with democracy and
equal citizenship into the idea of polycontexturality – a way that will not lead
us back to a context-indifferent imperial superdiscourse which Teubner
associates with Habermasian legal theory.
DEMOCRATIC CONSTITUTIONALISM: AN EMPTY SHELL?
1. Teubner’s ‘reconstructive project of private law’ proceeds from the insight
that where private governance regimes take over public tasks, they are driven
into a ‘dialectics of their apolitical character and their repoliticization’. The
PGR are ‘apolitical’ because they develop autonomous and transnational
legal and political regimes that are removed from the sway of democratic self-
government, understood in the conventional sense of effective national
governance – and of international public law. While breaking the delegatory
link to the national democratic process (Teubner, 1997b: 149 ff.), the PGR
are, however, at the same time exposed to a ‘new politicization’. The shift of
governance from the public sector to PGR does not suspend the requirements
of democratic accountability and of distributive justice (think of, for example,
the sundry regimes of risk management, health care, the media or public
utilities, etc.). The constitutional question, which Teubner pursues and which
animates the contemporary debate (cf. Michelman, 1999), is whether the shift
of governance ipso facto amounts to a constitutional evacuation – leaving the
constitution a largely empty shell in two essential aspects. These are (i)
designing a supposedly fair, open and inclusory procedure of lawmaking
responsive to problems concerning society as a whole, and (ii) providing the
security of citizenship even for disadvantaged social groups: whether the
emerging PGR can be ‘constitutionalized’ in such a way that problems of
justice and of democratic accountability can be resolved. The thought is that
the trends of globalization and privatization are to be viewed as ‘combined
06 Gerstenberg (jl/d) 3/8/00 1:48 pm Page 421
GERSTENBERG: PRIVATE LAW IN A POLYCONTEXTURAL WORLD
421
trends’ precisely in the sense that they risk undermining the very idea of
democratic justification. The challenge these two combined trends pose both
for constitutional law and for private law, lies in whether constitutional rights
can be (as Teubner says) ‘proceduralized’ in the so-called private sphere.3
2. The question that guides Teubner’s ‘reconstructive project of private
law’ – and which haunts contemporary private law theory – is whether
private law can meet this constitutional challenge at all, and to what extent.
Teubner’s conceptual aim is to sketch a middle ground between two extreme
positions that would hinder private law from meeting the constitutional chal-
lenge posed by globalization and privatization. These are: on the one hand, a
nostalgic longing for a buon governo-style normative holism, a ‘closely knit’
union of law and society (a); and, on the other, a monistic view in which in a
deeply heterogeneous society, economic efficiency is the primary, and sole,
value behind private law (b).
(a) Any nostalgia for the romantic unity of private law and society is,
Teubner notes, belied from the outset by the ‘bewildering multiplicity of
different private law regimes’ proliferating on a transnational scale. The
recurrent motive for such a nostalgia within contemporary debate is that the
existence of a stable common moral framework, embodied and perpetuated
in an exemplary way by the constitutions of the nation states, can constrain
and discipline the decentralized and local norm-generation processes of the
PGR. A ‘thick’ common identity is, according to this view, not only a pre-
condition of liberal democracy, and of democracy’s...
To continue reading
Request your trial