How Conceptions of Justice Associated with the Nation-State Obstruct Our View on Possibilities of Transnational Commercial Law

This article discusses axiological interferences of conceptions of justice associated with the nation-state in epistemological projects on transnational commercial law. It argues that the justice beliefs underlying classical legal positivism, which make us see law exclusively in state law, constitute an obstacle in our search for the rules and regimes that best fulfill the fundamental requirements of the rule of law. This is illustrated by focusing on one of the more polemical areas of this field: consumer protection, which provides a particularly clear illustration of the expansion of formal law in the twentieth century. The focus is put more specifically on the resolution of small cross-border consumer disputes. The study shows that international consumer protection requires a strict application of the provisions of a national law, even when the application of transnational non-state law would be more apt to attain the core political ideal that the rule of law seeks to further. This, it is argued, is due to mistaken conceptions of justice.This is the pre-peer reviewed version of the article which has been published in final form at http://www.ingentaconnect.com/content/hart/klj/2014