When Societal Constitutionalism Encounters Private International Law: Of Pluralism, Distribution, and ‘Chronotopes'
| Author | Horatia Muir Watt |
| Published date | 01 July 2018 |
| DOI | http://doi.org/10.1111/jols.12109 |
| Date | 01 July 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S185±S203
When Societal Constitutionalism Encounters Private
International Law: Of Pluralism, Distribution, and
`Chronotopes'
Horatia Muir Watt*
If societal constitutions can be defined as forms of self-constituting
power beyond the confines of classical forms of authority and legal
constraint in a post-national or global world, then private inter-
national law can make several offerings to transnational regime
theory, on the condition, however, of understanding the discipline,
beyond its technical component, as a receptacle for ideas about the
place of the foreign within the host legal system. Indeed, its encounter
with societal constitutionalism serves to bring to the surface some of its
less familiar, or less theorized, dimensions. The mode of the relation-
ship between the two disciplines can therefore be seen as one of
mutually constitutive co-production. Thus, private international law
offers a methodological template for transnational constitutional
pluralism, puts into practice fundamental requirements of democracy
beyond the state, and suggests ways of understanding the complex
sequences of time/space that are implicated in the interactions between
transnational regimes.
If societal constitutions can be defined as forms of self-constituting power
beyond the confines of classical forms of authority and legal constraint in a
postnational or global world,
1
then private international law is both
S185
* Law School, Sciences-po, Bureau 460, 13 rue de l'Universite
Â, Paris 75007,
France
horatia.muirwatt@sciencespo.fr
1 See Jir
ÏõÂPr
Ï
ibaÂn
Ï's definition in the 2017 Conference Programme:
Societal constitutions are thus organizations of non-state power legitimized by the
internally constructed and self-referential concept of the polity. Transnational legal
subsystems operate independently of the foundational constitutional recourse to
the pre-existent national polity and reformulate the idea of the constitutional
polity's self-rule as the self-constitution of societal power. In societal constitutions,
power not only effectively avoids legal constraints of authority but actually
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
paradoxically absent and yet unexpectedly present in their development.
According to the usual, technical definition of the discipline, it covers
questions that arise in cases which are connected in some way to other legal
systems (as it were, they brim over the reach of domestic law), as to the
applicable law, the exercise of jurisdiction, and the rec ognition and
enforcement of judgments (and sometimes, the status of aliens, immigration,
and free movement of persons).
2
While some of its content derives from
public international law, it is generally considered to operate in the shadow
of the latter, or at least on a parallel plane; according to this account, it aims
through a balanced allocation of jurisdiction or applicable laws, to bring
fairness, coherence, and predictability within the cross-border relationships
between private persons, and does not interfere with the politics of
international relations between states. This also explains why its relevance
to contemporary legal-theoretical issues in the context of global law's
emerging `intimations'
3
is generally dismissed or neglected. The claim to
political neutrality has led, in contemporary legal practice, to a somewhat
dissuasive form of hyper-technicity, with which it has become associated.
Discred ited the refore, f rom the ou tside, a s `paroc hial boun dary-
maintenance',
4
private international law viewed from an internal perspective
would seem equally unqualified to say much about transnational regimes,
and, in its `private' law capacity, even less about constitutionalism. Indeed,
on the one hand, not only does its perspective seem to be eminently state-
based, but it operates by re-`localizing'
5
cross-border phenomena by
reducing the transnational to the domestic, the global to the local. Curiously,
desp ite th e int erna tio nali ty in i ts nam e, it a ppea rs as th e mos t
uncosmopolitan of legal disciplines; it tends to consolidate the geopolitical
division of the world rather than making boundaries irrelevant. That is why,
today, it seems to have been dethroned from its near exclusive status as law's
S186
transforms them into the specific complex of productive non-juridical norms.
Societal constitutions are thus paradoxically the holders of power beyond politics
and legitimation beyond legality.
2 On a more theoretical level, the discipline is also said, variously, to be geared to the
coordination of legal syst ems, the quest for decisiona l harmony within the
transnational legal order, individual autonomy, the regulation of interjurisdictional
competition, the reception of the foreign, or indeed the `management of pluralism'.
As will be seen below, it supplies, potentially, a sophisticated set of tools which can
be put to any one of these uses, derives layers of deeper meaning from the diverse
historical contexts in which it is called upon to construct a legal regime beyond the
state, and ca n be seen as an intel lectual mod el for approa ching comple x
methodological issues in a global setting.
3 N. Walker, Intimations of Global Law (2015).
4 id., p. 109.
5 In the sense of `transforming the international into the local'. But this also refers to
the idea of `localization' in private international law theory. This term is used to mean
`situate metaphorically within a given jurisdiction', in order to determine the
applicable law.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
To continue reading
Request your trial