This Article explores a social vision of global public order taken from transnational private law. It recasts the potential role of private law in the crossborder economic context as centrally concerned with private action as both the object and vehicle of substantive and procedural governance. Viewed in this way, private law is a venue for the contestation and regulation of private action by private action in the contemporary global system. With its distinctive strengths and weaknesses, transnational private law is viewed as one alternative among many regimes of global order and is understood to perform a social—indeed, “public”—function in the embedding of private behavior and relationships within a broader social order.
This Article identifies the function of transnational private law as not simply facilitation of transactions, but also compensation for harms and social regulation of transnational conduct. Further, it argues that transnational private law can serve an ideational function in generating communicative interventions into the sometimes normatively closed national and functional systems of contemporary society. In serving these regulatory and ideational functions, transnational private law offers a different vision of global public order in which the task for state law is not command and control to eliminate conflict either within or across systems, but rather governance within and between social systems, including through allowing and sometimes facilitating conflict and contestation. It is with this distinctive vision that this Article begins.