Monday, January 26, 2009
MacDonald on European Private Law and the Challenge of Plural Legal Subjectivities
Posted by Mary L. Dudziak
European Private Law and the Challenge of Plural Legal Subjectivities by Roderick A. MacDonald, McGill University, has just been posted on SSRN. The essay appears in European Legacy (2004). Here's the abstract: This paper argues that the approach to questions of authority, legitimacy, and personal identity characteristic of contemporary European law presents a paradox. The power of the legal project that emerged after the French Revolution lay in its deployment of the notion of abstract legal subjectivity to challenge claimed authority. Much is made of the public law dimensions of this revolutionary moment - the creation of political constitutions establishing national citizenship and human rights standards. But the transposition of abstract legal subjectivity into the private law through national social constitutions like Civil Codes has been far less successful. Abstract legal subjectivity in public law regimes necessarily privileges some personal identities over others in its construction of citizenship. These privileged identities of public law citizenship limit how legal subjects can express their identities in the private law. The paper proposes an alternative, pluralist, theorization of the diverse, iterative character of everyday human interaction that gives content to the idea of legal subjectivity in the private law. It seeks to reconcile a public law of abstract, unitary citizenship with a private law of plural legal subjectivities in a manner that advances the project of democratic constitutionalism.