Artifice, ideology and paradox: the public/private distinction in international law

Abstract

Abstract This article examines the distinction between public and private international law, arguing that it is not reflective of an organic, natural or inevitable separation. Rather, the distinction is presented as an analytical construct that evolved with the emergence of the bourgeois state. The public/private distinction provided the ideological conditions for the emergence of liberal market economies and, in law, formed the foundation for territorially individuated state authority. However, contemporary developments in capitalist production and finance are reconfiguring the private and public spheres and contributing to the empirical decline of the distinction. The distinction remains very powerful symbolically, however; this is attributed to the influence of neoliberal ideology that asserts the superiority of private law in the regulation of international commerce. An alliance between private and public authorities who are united in their commitment to the expansion of capitalism through disembedding international commerce from national, social and democratic controls is advancing this ideology and contributing to the troubling and paradoxical exercise of public authority by private actors. Keywords: Public International LawPrivate International LawPublicprivatePrivate DistinctionInternational Trade Law