I.C.L.Q. 2006, 55(1), 1-49
International & Comparative Law Quarterly
2006
Article
THE PRIVATE HISTORY OF INTERNATIONAL LAW
Alex Mills.
Subject: JURISPRUDENCE. Other related subjects: Conflict of laws
Keywords: Conflict of laws; Historical jurisprudence; International
law
Abstract: Explores the history of the theory of private international
law, from its early origins through ideas of positivism, natural law
and historicism. Examines the theoretical basis of certain myths
concerning public and private international law, including the notion
of them being discrete disciplines with independent histories.
*1 I. INTRODUCTION AND METHODOLOGY
The purpose of this article is to address two related false
assumptions, or myths. The first is an assumption of public
international law. It is the myth that the history of international
law is one of progressive expansion, of increasing concern in public
international law with matters traditionally considered private or
internal to States, and that this expansion is a relatively recent
phenomenon. [FN1] The second is an assumption of private international
law. It is the myth that private international law is not actually
international, as it is essentially and necessarily a part of the
domestic law of States. [FN2] These assumptions, taken together,
constitute the myth that public and private international law are
discrete, distinct disciplines, with independent, parallel histories.
This article addresses these myths through an analysis of the role
played by international law theory in the history of private
international law.
A typical history of a subject like public or private international
law is 'internal' or 'intrinsic', a history of the development of
legal doctrine and theory within the discipline. [FN3] In such a
history, theories or approaches are presented chronologically, in a
series of 'epochs' or competing 'paradigms'. The story of their
succession is told simply as a historical fact, without significant
attention *2 to contextual factors--suggesting the discipline is
propelled forwards by internal dynamics. [FN4]
The application of this historical methodology to private
international law, this 'story' of private international law, excludes
something critical. Historical study is of course necessarily limited
and selective; it is about inclusion and exclusion. The choices of
what is 'intrinsic' and what is 'extrinsic' reflect a theory of what
is im****tant, what is relevant, and often what is valued by the
author. [FN5] This typical history of private international law
chooses to tell us only the story of private international law as the
discipline is conceived today--in English law, for example, 'that part
of the law of England which deals with cases having a foreign
element ... [meaning] a contact with some system of law other than
English law'. [FN6] This history may suffice if all that is required
is an understanding of the doctrinal origins of contem****ary private
international law rules and approaches. However, this approach can
only tell a genealogical history of the contem****ary form of private
international law--a discrete, coherent, autonomous, national
discipline. It does not permit an exploration of the underpinnings of
private international law, and it denies the possibility that private
international law might have been, and might be, conceived as part of
broader historical movements and a broader international system. [FN7]
This article tells another story of the history of private
international law-- the 'private' history of international norms and
private international law. It is an 'extrinsic' history of private
international law, looking at the role played by broader ideas of
international law and international order in its development, [FN8] *3
including in its early origins (section II), and through the ideas of
positivism (section III), natural law (section IV) and historicism
(section V).
The focus in this article is on the history of the theory of private
international law, as expressed through the most influential writers
and theorists in international law. [FN9] It is thus not a history of
the rules or practice of private international law, but an exploration
of the influence of different ideas of private international law as
expressed by international legal theorists, including theorists not
traditionally viewed as a part of the history of the discipline of
private international law. By exploring the intersections between the
histories of public and private international law, it challenges the
international public/private distinction, and discredits the myth that
these disciplines are necessarily independent, that their histories
run in parallel.
There are two related main reasons why it is im****tant to tell this
story. The first is because of its explanatory value--our
understanding of public and private international law is improved by
greater insight into the way in which private international law has
developed within the context of international norms, theories and
structures of international order. Changes in private international
law rules and approaches are not arbitrary, nor do they necessarily
indicate 'progress' in the development of 'more sophisticated'
techniques, nor indeed do they indicate a 'full circle', a cyclical
history. [FN10] Instead, private international law theories, rules and
approaches are reflections of and responses to changes in their
theoretical and social context. Private international law rules and
approaches do not merely reflect, as contem****ary *4 accounts might
suggest, a dialectic between public policies (such as justice,
certainty, individual autonomy) within each State. They are also
engaged in both responding to and indeed in constructing an
international order which is reflected in a set of international
norms.
The second justification for this article's history is that it
demonstrates the contingency of contem****ary theories of international
law--it highlights the myths identified above. It demonstrates that
our understanding of private international law depends on broader
theoretical foundations--foundations which may ****ft, and which
arguably are indeed ****fting. By revealing the conditional nature of
our current understanding of private international law, and the
factors on which it depends, it reopens the possibility that private
international law might be transformed as changes in those factors may
permit or require. As international law (again) becomes increasingly
concerned with the regulation of 'private' matters, it also provides
an account of a way in which international lawyers of the past thought
that this might be possible through private international law. It
therefore makes possible the revival of the idea of private
international law as a tool for international lawyers, which might
again be applied to the regulation of the international system. In
reopening the contingency of ideas of both public and private
international law (and of the validity of their distinction) it is,
therefore, a story of international private international law which
has a future--not merely an ending.
II. THE ORIGINS OF PRIVATE INTERNATIONAL LAW
This section traces the early development of ideas of private
international law, beginning with Roman law. There were no private
international law rules in what is now known about Roman law, [FN11]
but ideas from Roman law played a key role in its gestation, and
continue to exercise an influence on contem****ary theory. An
understanding of the origins of private international law is thus an
essential prerequisite for an understanding of more modern approaches.
[FN12]
*5 A. Roman law
1. The Roman legal order
The dominant ideology of the Roman world was the concept of a
universal empire. This idea reflects the Roman adoption of Greek
natural law philosophy, most closely associated with Aristotle and the
Stoic school, [FN13] and in part explains and in part reflects the
fact of Roman hegemony. The only recognition of the role that
different legal systems might play in resolving disputes was a
'vertical' division of competence--the deference to local law to
resolve local disputes. [FN14]
It is not surprising that private international law rules did not
develop within such a system. For the Romans, there was no 'conflict'
of laws--Roman universalism demanded the integration of other
territory as part of the empire, not mutual respect of different
peoples and their legal systems. [FN15] Given the Roman conception of
justice as unitary, absolute, universal, it was impossible that
justice could be served through the application of a foreign legal
order. [FN16] The Roman theory of international order was simply the
universalization of the Roman order--a homogenization of law which
renders private international law redundant. [FN17]
2. The development of the ius gentium
However, until the late Roman empire, there was at least one im****tant
way in which the Roman legal order was not universal--the distinction
between citizens and non-citizens. [FN18] The citizen, by virtue of
his participation in the Roman political system, was entitled to
greater civic rights under the ius civile *6 (the civil law). Special
tribunals and law, the ius gentium (the law of peoples), were
developed for cases involving non-citizens. [FN19]
As the ius gentium did not depend on or reflect Roman institutions or
civic life, and applied to both foreigners and resident non-citizens,
its development drew on a wide range of international sources. It thus
addressed the problems of resolving multiple sources of law not by
choosing between them, but by 'blending' them--an approach which also
has present day advocates. [FN20] Over time, arguably directed by
practical economic imperatives, the ius gentium expanded to become a
more flexible and sophisticated system of law than the ius civile.
[FN21]
It is not clear whether the ius gentium was initially conceived as a
natural law system, reflecting the principles of a universal natural
legal order described above. [FN22] This characterization may have
been adopted as a strategy to assist its legitimacy in its application
to non-citizens, or it may have been a consequence of its origin as an
abstraction from a range of legal systems. [FN23] What is clear is
that the ius gentium took on this connotation of universality, and the
term ius gentium became a description not of a Roman invention but of
'the law which natural reason establishes among all mankind', [FN24]
reflecting the triumph of Stoic philosophy in Roman law. [FN25] This
broader sense of ius gentium, referring not to the particular content
of this type of Roman law (which was a system of private law applying
to non-citizens, not a system of international law), [FN26] but to the
concept of a universal natural law system, has, as we will see, been
enormously influential in the development of international law. [FN27]
*7 B. The statutists
1. Personal law
The gradual collapse of the Roman empire in Western Europe
corresponded with a rise in the im****tance of ethnic or tribal
communities. [FN28] Physical boundaries between different peoples were
fluid and largely unim****tant-- there was no territorial map of Europe
corresponding with social divisions (with the arguable exception of
the Frankish empire). [FN29] This system of social organization was
reflected in a system of legal ordering, according to which the law
applicable to a dispute was determined not by the location of the
court or of the disputed event or thing, but by the 'personal' laws of
the disputants. [FN30] Effectively, each person carried their own law
with them. [FN31]
Thus, before the development of private international law, early city-
states understood their law as limited to subjects of the local prince
or city, although it is of course arguable whether this reflected a
theoretical position (about the proper division of legal competence)
or the practical limitations of enforcement. [FN32] This idea of law
as a personal attribute dominated the period between the end of the
Roman empire and the renaissance. [FN33]
*8 2. Natural law
The Italian renaissance was characterized by a revival, readoption and
reinterpretation of classical (Roman and Greek) texts and ideas, which
quickly spread throughout Europe. [FN34] These were reflected in a re-
emergence of classical science and scientific method, and its
application to understanding society. [FN35] Thus grew the idea that
not just the natural world, but also the human world, behaved
according to laws--which reinforced the Roman idea of the existence of
a universal natural legal order discussed above.
Together with the Roman idea of universal law, the actual substantive
content of Roman law was readopted (or reinterpreted) as an ideal,
universal legal system. Some law could be interpreted or applied
directly from Roman sources, or derived from the principles
established in Roman texts. However, the Roman concept of universal
law was also modified to ensure consistency with Christian doctrine.
Natural law could be unveiled through revelation (the direct divine
connection of religious authorities) or through reason. [FN36] The
ambition for natural law should not be exaggerated--many natural law
theorists did not expect natural law to provide a complete system of
laws, but rather a framework for positive law, with complex
interaction between natural and positive laws. [FN37] Aquinas
characterized natural law as the 'participation in the eternal law by
rational creatures' [FN38] applying 'right reason', [FN39] in an
attempt to reconcile the fact of human law (or at least rational human
law) with the concept of universal law. [FN40] Under this conception,
the rules of natural law *9 could be derived through the application
of deductive reasoning to accepted principles or axioms. [FN41]
3. Local law
Around the time of the Italian renaissance, large Italian towns
evolved into city-states, and fixed the limits of their territories
with walls. For sociological and economic reasons, and more
pragmatically as a result of the need for security against invaders,
[FN42] the city-state evolved into an increasingly concentrated centre
of power and influence, with growing power exercised by local princes.
In some areas of law, particularly commercial law, Roman law was
adopted or interpreted by different city-states fairly uniformly.
[FN43] In other areas, whether because of differing interpretations of
Roman law, or because of the legislative actions of local sovereigns
(usually also justified as 'interpretations' of Roman law), the
widespread adoption of the territorial city-State as a social
organization across Europe corresponded with the growth of local law.
[FN44] Thus, increasingly, law differed from city to city, reflecting
the unique characteristics of each city and its leaders. Despite,
therefore, the common origins of each city-state's laws in theories of
natural law, based on a re-interpretation of Roman law, there was a
countervailing growth in local, territorial variation. This resulted
in two types of legal conflicts.
4. The conflict between natural law and local law
The first was the conflict between the theoretical universality of
natural law and the fact of diversity of local law. This problem was
largely addressed through the distinction (provided by Aquinas) [FN45]
between natural law and human law. Natural law provided the basic
principles which any legal system *10 must follow. However, within
those limits, there was a need for local law to supplement the broad
principles of natural law, and scope for variation in local law from
community to community. [FN46] This resolution of the problem of
reconciling natural law and local law created a conceptual 'gap'
between human and natural law, a move whose consequences will be
discussed further below. [FN47]
5. The conflict between foreign law and local law
The existence of local variations in city-state legal systems also led
to another, for our purposes more im****tant, type of conflict.
Initially, each city-state would simply apply its own law to any
dispute that came before its courts. [FN48] However, an expansion of
international trade and commerce, both between European city-states
and with the Middle East, led to an increase in the situations in
which disputes would have significant foreign elements, and the
diversity of city-state legal systems made the applicable law ever
more im****tant even in the case of more local disputes. This diversity
was combined with an increased level of mutual respect between
different cities and states, including but not limited to European
city-states with shared Roman law origins, [FN49] as a product of both
a broadening world view and the concerns of commerce.
These practical and ideological issues translated into a legal
problem. If each of these legal systems was an interpretation of
natural (Roman) law, or as we have discussed, a valid human law
operating within a natural law framework, then surely each could
deliver 'justice'? If a dispute was largely a matter of concern to a
foreign city-state, whose legal system (while different from local
law) could be reasonably trusted and respected, or was the system that
the parties would have had in mind to moderate their actions, how
should the court resolve the dispute? The idea which emerged to
address this problem is the idea of private international law.
We have discussed the characterization of natural law as a higher
level law, providing general principles which are the framework for
the operation of diverse human laws. Private international law rules
were conceived as a distinct type of higher level natural law, a set
of rules which provided the solution to problems in determining which
positive law ought to be applied to resolve a particular dispute.
Private international law rules were thus conceived of as part of the
universal natural law, a part that facilitated and sup****ted the
existence of diverse local legal systems. [FN50] This point is worth
*11 emphasizing--private international law was first conceived of not
as part of local law, which differed from city-state to city-state,
but as part of a universal (natural) international law system, to
address the practical problems of legal diversity. [FN51]
6. The conflict between personal law and territorial law--the
statutist approach
We have noted the existence of two forms of social organization at
this time, reflected in two influential ideas about law. First, the
idea of personal law, that law may be associated with an individual by
virtue of their member****p of a tribe or national group. Secondly, the
idea of local law, law associated with a particular territory or
region, reflecting the increased im****tance of localized or
regionalized power centres. [FN52] The dominant systems of social
organization reflected a balance and tension between these two
competing ideas. [FN53]
With increased legal diversity, there was increased need for a
satisfactory way of reconciling competing legal systems. The statutist
approach emerged as a response to this problem. [FN54] Complex as this
tradition was, the approach can be distilled into a simple idea--the
idea that each law 'naturally' belongs to one of the two types of laws
identified above, personal and local. If a law is *12 personal, it
'attaches' to the person and applies outside the territory of the
statutory authority. If a law is local (or 'real'), it 'attaches' to
the land, and applies only within the territory of the statutory
authority, but to all persons within that territory. A court dealing
with a dispute with foreign elements should therefore determine and
apply the laws applicable to the dispute by reference to both the
personality of the parties (if their statutory authority has made any
relevant 'personal' laws), and the place of the relevant disputed
action or thing (if the statutory authority of that place has made any
relevant 'real' laws).
The statutist approach addressed the conflict between legal systems,
between foreign and local law, by attempting to develop a principled,
analytical, 'natural' law way of determining which laws had
extraterritorial effect (and in which cir***stances), and which laws
were territorial in their operation. It is worth emphasizing again
that this is a conception of private international law as part of a
universal and international system of law--the division between types
of laws is intended to reflect a natural division which operates in
all legal systems. [FN55] In fact by adopting a division between
personal and territorial laws, the statutist approach enabled law to
follow and reflect the developing complexity of the political, social
and economic order. The reason behind the widespread and lasting
influence of the statutist approach is simply that it mirrored
effectively the two dominant competing ideas of international order
existing at the time [FN56]--the division of the world into peoples,
and the division of the world into territories.
'Natural' as this methodology may have seemed to the medieval scholar,
its limitations will be apparent. The division of statutes into one of
two categories became quickly problematic, and a third category,
'mixed' statutes, was invented, sometimes as a third type of
classification, and sometimes simply to contain those statutes which
could not comfortably be classified as real or personal. [FN57] The
difficulty of classifying statutes reflected not merely the
uncertainties of the interpretative method, but the continued
pragmatic and political problems of balancing the interests and claims
of foreign and local legal systems. The reliance of this approach on
the interpretation of statutes also left it vulnerable to criticism
that it made (unprincipled) distinctions based on the form and not the
substance of laws, and thus reflected a hidden politi cal decision.
[FN58]
*13 C. The rise of the territorial State
As we have discussed above, the statutist approach reflected the
existence of two competing theories of international legal order--
personal and territorial. The theory was developed further in a
flouri****ng France [FN59] whose diverse provinces and local laws
operated under a unified crown, a combination of diversity and a
unifying principle analogous to that of the Italian city-states.
[FN60] The French approach, developed prominently by Du Moulin, [FN61]
emphasized personal law and considered the intention of the parties
themselves as relevant [FN62] (perhaps the beginning of the end of the
statutist approach). [FN63] However, despite Du Moulin's focus on
personal laws, the trend of history and (thus) legal theory was
towards territoriality, expressed through the development of the
concept of territorial sovereignty. [FN64] More permanent, developed
forms of social organization started to become recognized as enduring
territorial 'States'. [FN65]
*14 D'Argentr=E9, writing again in the fertile private international law
conditions of 16th-century France, reflected this trend, and may be
contrasted with Du Moulin. [FN66] Where Du Moulin argued for a
presumption in favour of the classification of laws as personal,
D'Argentr=E9 argued, more influentially, that laws should be
presumptively territorial and only exceptionally personal, [FN67] and
that mixed statutes should also be classified based on territorial
points of connection. [FN68] In this drift towards territoriality,
private international law again reflected changes in the prevailing
theory of international order, the increased im****tance of regional
autonomy and territorial sovereignty. [FN69]
D. The origins of English private international law
The English common law resisted the spread of Roman law which founded
the civil law systems, and with it the influence of the statutists on
private international law. England therefore did not develop private
international law rules until much later than continental Europe. Part
of the explanation for this may come from the requirement in the
common law for a trial by jury, [FN70] which characteristically led to
the solution of the problem through legal fictions. [FN71]
The English legal system also responded to international cases through
the development of special courts and special law, in much the same
way that the Roman ius gentium [FN72] was developed to deal with non-
citizens. [FN73] In fact, English judges borrowed much of the source
of this law from Roman law, and used the term ius gentium or the law
of nations to describe it. [FN74] The lex mercatoria or law merchant
[FN75] was developed in English law as part of this law of nations.
[FN76] Eventually, many of the rules of the ius gentium were absorbed
*15 through reforms to the common law (again much like the absorption
of the Roman ius gentium by the ius civile). The early English rules
for dealing with international disputes were therefore justified as
being part of a broader international, natural law, which perhaps
meant that English law was unusually receptive (particularly through
the influence of Scottish civil lawyers and judges) [FN77] to the next
wave of private international law theory, developed in the Netherlands
as part of a broader positivist revolution in international law.
III. THE POSITIVIST 'REVOLUTION' IN INTERNATIONAL LAW
A. General features of positivism
The history of international law studied thus far reflects natural law
ideas and techniques--an appeal to Roman law, reason, or religion, to
found a claim that certain principles or categories developed are
universal, and the application of deduction and interpretation to
those principles to develop more detailed rules. For the statutists,
the renaissance inspired a revival of the Roman system of universal
natural law, with the addition of rules of private international law,
not conceived of as part of the laws of any State, but as part of the
international law system which transcended local law.
The renaissance, however, also brought with it a revival of inductive
scientific methodology, both in the natural sciences and the social
sciences, which would profoundly affect this reliance on natural law.
[FN78] The discovery of the New World by the Old World challenged the
belief in the universality of European natural law, and the explosion
in international trade raised new practical and theoretical problems
which did not seem to be addressed by the old natural law, inviting a
more pragmatic approach--and opening the possibility of a 'scientific'
approach to law. [FN79]
The application of scientific methods to the study of social sciences
is usually referred to as positivism. [FN80] Positivism is more a
methodology than a *16 theory, [FN81] which, in its application to
law, prescribes the study of laws as if they were natural phenomena,
to be observed and evaluated, detached from preconceived ideas and
dogma. [FN82] According to positivist ideas, theorizing should be
based on the observation of behaviour, from which rules are developed
through inductive reasoning--the opposite process to natural law
deductions. Influenced by Humean and Lockean empirical scepticism,
[FN83] a positivist theory attempts merely to predict, not explain, as
the causes of things are unknowable in themselves. Just as a
positivist approach to studying the behaviour of animals would involve
deriving rules from observation of their behaviour (and not
contemplation of their 'nature'), a positivist approach to
international law means the study of the behaviour or practice of
States, and the derivation of rules from that practice. [FN84]
B. Sovereignty and State practice
We have already observed (in its reflection in the statutist theories
of D'Argentr=E9) [FN85] a trend towards a territorial conception of law,
and the development of the concept of sovereignty. [FN86] Factually,
this was reflected in increasingly defined and fixed boundaries
between permanent States, and in increasing powers of local rulers
over their territories. The latter was in particular a consequence of
the decline in powers of the Papacy and Holy Roman Empire, which
previously acted as limitations on sovereign power, [FN87] manifest in
the political disintegration of Europe during and after the Thirty
Years War. The fact of centralization of power in State sovereigns was
reinforced by theories sup****ting ideas of increasingly powerful
sovereignty, such as those of Machiavelli and Hobbes. [FN88] The
concept of sovereignty was initially expressed through the personality
of the head of the State, [FN89] but developed into the idea *17 that
the sovereign's legal acts, expressed as treaties, were not personal
(expressing the will of the sovereign) but attached to the territory
of the State (expressing the 'will' of the State), and endured and
survived to bind future heads of State. [FN90]
We may note the emphasis here on law as a reflection of 'will',
particularly individual will, in opposition to the natural law
emphasis on the triumph of reason over will. [FN91] This lent the
positivist methodology a natural affinity with the rise in liberal
theory, with its emphasis on private, individual power competing
through the market system. [FN92] The theoretical emphasis on the will
of the sovereign or State also corresponded with an increase in the
number of international treaties (and a corresponding focus on
international law as the product of agreements), which probably
reached a high point in the 19th century, particularly in the birth of
multilateral treaties and international arbitration. [FN93] The idea
of international law as a product of State will was reflected in the
willingness of States to 'manage' international order, reaching a high
point in the counter-revolutionary 1815 'Concert of Europe' and its
subsequent conferences. [FN94] However, this was not a centralized
international legal order--between alliance participants, it was a
matter of treaty, and in its impact on other States, it was based on
the simple exercise of power (of the dominance of one State will over
another), not on any sense of legal right or obligation. In the 18th
and 19th centuries, the behaviour of States thus appeared increasingly
unrestrained in theory or practice by any sort of natural law
limitations on the exercise of their sovereignty.
C. The positivist account of international law
Positivist legal theorists derived their account of international law
as conclusions from observing this type of behaviour among States. We
should note, of *18 course, that these observations and conclusions
are entirely contingent on the nature of the behaviour of States.
[FN95] While the conclusions we discuss here are what is known as the
positivist theory of international law, in fact they are only the
result (and perhaps not even the only result or the correct result)
[FN96] of applying a positivist methodology to the behaviour of States
in the 18th or 19th century. The application of a positivist
methodology to international law in the present day would not lead to
such an extreme theoretical emphasis on State sovereignty, because
this is not how States behave today. Caution must therefore be
exercised in the use of the term 'positivism' in association with
international law, because its technical (historical) meaning,
implying a theory of strong State sovereignty (which is the sense we
are exploring in this section), is only contingently connected with
its general meaning. [FN97]
For positivists, a new set of rules was necessary to describe the
behaviour of States, because States were not part of the 'natural
order' but an artificial creation of human society. The leading figure
in making this distinction, and one of the leading figures in the
history of international law, was Grotius, [FN98] writing in the
aftermath of the still troubled unification of the Netherlands in 1579
and in the middle of the Thirty Years War which dominated the early
17th century. [FN99]
In his writings on general law, Grotius drew on both natural and
positivist methodologies, [FN100] arguing that the laws of nature can
be derived from reflec *19 tion on our nature (applying deduction and
'right reason' [FN101]--using again the phrase of Aquinas) and from
observing our situation (and applying induction). [FN102] However,
Grotius sharply distinguished international law from this reasoning.
He argued that because States were sovereign, the law of nations was
part of what he classified as 'voluntary law', not part of the natural
law realm, [FN103] and that international law 'must have its origin in
the free will of man'. [FN104] He identified the will and practice of
States as a 'source' of law, operating distinctly to natural law
[FN105]--exposing it to the possibility of a positivist methodology.
Grotius borrowed the term ius gentium to describe this law of nations,
im****ting with the term its universal, natural law, legitimating
implications from Roman law. [FN106] However, the concept of the law
of nations offered by Grotius was sharply distinct from the Roman and
renaissance universal, natural law concept--not a matter of natural,
universal laws or categories, but a matter of the will and practice of
States [FN107] (albeit a 'great society of States'). [FN108] The ius
gentium became, under Grotius, not the Roman (ideal) 'law of peoples',
but a new (factual) 'law of the peoples'. [FN109] There are still
elements of natural law reasoning in Grotius's discussion of
international law, and it is not entirely clear whether it is accurate
to label him a positivist. However, in his analysis of law Grotius at
least made the conceptual distinctions which facilitated a positivist
approach. In particular, in his analysis of international law, he
expedited the rise of positivism by emphasizing the conceptualization
of its formation as the product of voluntary human action.
This separation of the law of nations from natural law was reflected
in the treaties of the Peace of Westphalia of 1648, [FN110] often
identified as the birth of modern international law. These treaties
not only signified the growth in *20 treaty-making as an exercise of
State will and law-making discussed above, but also reflected a
further im****tant implication of the Grotian approach. The separation
by Grotius of natural and voluntary law necessarily also corresponded
with a separation of the 'internal' from the 'external', the internal
sovereign law of States (which drew on natural law) from the external
international law of sovereigns (which drew on State practice and
will). This distinction made the problem of drawing the boundary
between the internal affairs of States and their external relations
central to the functioning of inter national law. [FN111]
Grotius's more immediate influence was not the separation of natural
and voluntary law (in his ideas of international law), but his attempt
(in his general analysis of law) to reconcile natural law with a
positivist methodology. Pufendorf, for example, following Grotius
(although retreating towards a more Aristotelian form of natural law),
[FN112] argued that, even though natural and human law are distinct,
since divine will determines our nature and our behaviour (not a
Hobbesian pre-social natural anarchy), [FN113] we can learn the divine
laws we are commanded to obey by a combination of reflection and
examination of facts about ourselves [FN114]--in Pufendorf this tended
towards introspection rather than observation. [FN115] Spinoza argued
that human and divine nature correspond, thus rational human law is
divine and universal. [FN116] Even this reconciliation, however,
involved an increased focus on the study of human laws, and in the
case of the law of nations, facilitated a growing sense of their
independence from divine or natural law. [FN117]
This was reflected most clearly by Vattel in the 18th century, whose
writing started as a translation of the natural law theorist, Wolff,
[FN118] but instead radically departed from any sense of natural or
divine order in the laws of nations. [FN119] He characterized each
nation as an individual, with a particular will, not bound by the laws
of any international 'society', but owing only a *21 duty to itself
for its own fulfilment, to act according to its own conscience.
[FN120] He argued that each nation had sovereign equality, meaning
equality in its formal legal status and entitlements in international
law, [FN121] (dubiously) claiming that 'strength or weakness, in this
case, counts for nothing'. [FN122] Thus for Vattel, '[n]ations are
free, independent, and equal, and since each has the right to decide
in its conscience what it must do to fulfil its duties'. [FN123]
Under Vattel's influential 'voluntarist' characterization of
international law, the conception of international law as merely
reflecting the voluntary acts of State will was adopted as a
foundational principle. [FN124] Just as we have observed above that in
practice the behaviour of States emphasized their independence and
sovereign (particularly territorial) [FN125] power, positivist
international law was conceived as merely a reflection of the actions
of States, as existing purely 'between' States and not 'above' them.
[FN126] The terminology reflects this change--instead of the 'law of
nations', the positivist Bentham adopted the term 'international' law.
[FN127] Even customary international law was (paradoxically)
reconceived as a form of 'implied consent'. [FN128] This reconcep *22
tualization transformed the study of international law, which became
by the 19th century an exercise in collating and describing (and,
arguably, justifying) State practice, [FN129] rather than theorizing
about a universal international legal system. [FN130]
It was also in the 19th century that this imagined boundary between
the internal and external, the domestic and the international, reached
its highest point. [FN131] The criteria for what constituted a proper
concern of international law were scaled back, until the role of
international law was little more than to provide a formal system for
the recognition of State sovereignty.
This division between the domains of international and national law
was not merely reflective of the prevailing theoretical and factual
emphasis on the independence of State sovereigns. [FN132] From another
angle, it can be analysed as a strategic move for the universalization
of the model of the international system represented by international
law. By minimizing the substantive content of the international
system, through insulating the majority of issues as matters of
domestic sovereign concern, international law became compatible with a
wide degree of internal State diversity. Thus international law in
this universalizing mode was able to move beyond its original
conception as European. This is perhaps also a part of the explanation
for the popularity and influence of this approach--a minimal and
largely descriptive international law was no obstacle to the expansion
of the system of State sovereignty through colonization. Under its
positivist conception international law arguably became 'an
endorsement of current practice camouflaged by the supposedly self-
enforcing sanction of conscience'. [FN133]
It is perhaps unclear whether this increased respect for the internal
diversity of States is a cause or a consequence of the introduction of
diverse States (eg from Latin America, Eastern Europe and Asia) to the
'international system' in the 19th century. [FN134] What is clear is
that this universalizing minimal model of international law may be
contrasted with international law both *23 before this period and
after. Before, international law openly regulated matters now
considered 'internal' to States, and adopted exclusionary strategies
to coerce its enforcement (declaring uncooperative States as
uncivilized). Similarly, in more recent times international law has
again begun to engage with the domestic domain through the adoption of
substantive norms such as human rights, again using exclusionary
strategies to enforce these norms (declaring uncooperative States as
rogue or outlaw States). [FN135]
D. The private international law implications of positivist
international law
Grotius did not directly address questions of private international
law. [FN136] This is despite the fact that during his time private
international law was clearly conceived of as forming part of
'international law'. However, the sense of unity between private
international law and other international law changed with the move
towards the positivist theory of international law. While advocates of
the statutist approach argued that private international law rules
were part of natural law (hence part of a single universal legal order
which encompassed all international law), a positivist approach viewed
private international law rules as simply one implication of the
fundamental (voluntarist) concepts of international law.
There are two ways in which positivist international law influenced
the development of private international law. First, as noted above,
the positivist account of international law emphasized the (formal)
equality, sovereignty and independence of each State, with a
particular focus on territorial conceptions of sovereignty, and a
strong (but problematic) boundary between the internal and external
aspect of a State. [FN137] The emphasis on this boundary raised the
difficult issue of whether to characterize private international law
as national or international law, as it appears to contain both
national and international elements--a difficulty which we will see is
reflected in the problematic development of private international law
theory. The conceptualization by Bentham of the law of nations as
'international' law led to the gradual exclusion from international
law of the law dealing with private disputes connected with more than
one State, characterizing it by default as part of 'national' law.
[FN138] The characterization of private international law as national
law also facilitated its characterization as private national law,
thus contributing to the development of the global market economy.
[FN139]
*24 Secondly, under the positivist approach, part of the purpose which
international law serves is to demarcate this imaginary boundary, by
limiting interference in the sovereign affairs of a State, in
particular in matters affecting its territory. This purpose is
manifest in a number of ways, reflecting the variety of ways in which
a State or its agents might 'infringe' or 'interfere with' the
sovereignty of another State. These include limitations on the
competence of domestic courts to deal with cases affecting foreign
sovereign interests, such as the international law rules concerning
sovereign immunity. [FN140] Equally, private international law rules
may be viewed from this perspective as a means of protecting State
sovereignty from interference, and thus as a consequence of the
positivist theory of public international law. In this section we will
examine the evolution of theories which have addressed private
international law in this way, as an implication of the positivist
territorial theory of sover eignty. [FN141]
1. The Dutch School
As noted above, the unification of the Netherlands in 1579 influenced
the development of the Grotian theory of State sovereignty and
voluntary international law. [FN142] This unification, however, did
not exclude the continued existence of individualist provinces with
diverse legal and cultural history. [FN143] Thus, in the Netherlands
in the 17th century we see again the combination of difference and
deference, diversity with a unifying principle (the push towards
national unity), the sense of inter-state order, which was a fertile
breeding ground for the development of private international law rules
in both Italy and France. [FN144] It is therefore no surprise that
this was the stage on which the next phase of private international
law theory would emerge.
Two early figures in the emergence of the Dutch private international
law *25 school were the father and son, Paul Voet [FN145] and John
Voet. [FN146] Each accepted the statutist approach but, under the
influence of the concept of territorial sovereignty, suggested that
because of a State's own territorial control over its courts, it could
only refrain from exercising jurisdiction or applying its law to a
case with foreign connections voluntarily. Since this restraint by a
State could not be mandated by law, it was expressed as a matter of
'comity', [FN147] which was adopted as a principle of statutory
interpretation. The reliance on the ambiguous concept of 'comity',
which was later classically defined as 'neither a matter of absolute
obligation, on the one hand, nor of mere courtesy and good will, upon
the other', [FN148] arguably embodies the difficulty and even the
artificiality of characterizing private international law in the
positivist division between international and national law. It is a
mixture of international (mandatory) and national (discretionary)
elements. Emphasizing the national perspective, the Voets argued that
a judge ought only to apply the law of his own State, unless the State
had given authority to the contrary. [FN149] Although the principles
developed by the Voets were intended to be universal, these ideas are
perhaps the beginning of the trend towards the decline of universalism
in private international law, discussed below. [FN150]
The most influential writer from this period is another Dutch
theorist, Huber, writing in the late 17th century. [FN151] Following
Grotius, and accepting the law of nations as a distinct, voluntarist
system of law, Huber argued that it was capable of detached logical
analysis, separate from the political questions which concerned
matters internal to each State. Accepting the idea of territorial
sovereignty, he attempted to crystallize its implications in a system
of private international law. [FN152]
According to Huber, three logical consequences followed from the
acceptance of territorial sovereignty. [FN153] First, laws of a
sovereign are effective within the territory of the sovereign, but not
beyond. Secondly, laws of a sovereign are effective against aliens who
are (even tem****arily) within the sovereign territory. [FN154]
Thirdly, each State 'will so act by way of comity' [FN155] to *26
recognize 'rights acquired within the limits of a government', so long
as the State's own power, law or citizens are not prejudiced by this
recognition. This third rule may be considered as an expression of the
division between internal and external matters as part of the
positivist account of international law--internal matters, in which
another State's power, law or citizens are not prejudiced, must be
recognized as purely within the domain of the State.
There is a fundamental ambiguity in Huber's writing, which again
reflects the fundamental difficulty in characterizing private
international law either as part of international law or part of
national law. Huber argued that these rules were not only the logical
implications of sovereignty, but were implied by the needs of
international commerce, [FN156] reflected general international
practice, and were accepted based on the 'tacit consent' of nations.
[FN157] Following Grotius, he also referred to these rules as part of
the ius gentium, with its Roman law implications of natural, universal
law. However, at the same time his conception of private international
law (and his use of the term 'conflict of laws') [FN158] clearly
reflects the foundations of his approach in State territorial
sovereignty. [FN159] His third rule characterizes the application of
foreign law by a State as an act of State will, based on the consent
of the State, adopted as a matter of convenience or courtesy. This is
a clear transitional point for private international law. Much of
Huber's writing sup****ts the view that his rules were intended to be
part of a universal international law, and hence not discretionary.
However, the content of his third rule, in its deference to the
problematic concept of comity, made the discretionary exercise of
State will central to private international law. [FN160]
2. Story
Huber's approach was advocated to and adapted for the English-speaking
world by Story. [FN161] It is thus not surprising that Story shares
Huber's ambiguity *27 towards the question of whether private
international law is part of national or international law. [FN162]
Early authorities in the United States had accepted a strong influence
for the law of nations on the development of private international law
in the United States, thus adopting the view of private international
law as part of a single international system. [FN163] It has similarly
been argued that Story's work 'reflects a faith in the essential unity
of private international law as an integral branch of international
law'. [FN164] Certainly, there are elements in Story's legal reasoning
which reflect a natural-law-inspired internationalism. [FN165]
In other respects, Story's approach shows the influence of a
positivist methodology, in particular the idea of private
international law as part of national sovereign discretion, perhaps
reflecting the influence of Bentham's exclusion of private matters
from international law. [FN166] His seminal 'Commentaries on the
Conflict of Laws' of 1834 [FN167] did not include much by way of
general principle, [FN168] or even a great deal of historical or
theoretical discussion, but instead provided a huge ('scientifically'
structured and international) [FN169] survey and analysis of private
international law cases, examining the law as it existed, and
reasoning by induction from these cases to rules. [FN170] *28 It is
true that his survey included a wide range of international cases.
However, emphasizing territorial sovereignty as the foundation of
private international law, Story also argued that 'it would be wholly
incompatible with the equality and exclusiveness of the sovereignty of
any nation, that other nations should be at liberty to regulate either
persons or things within its territories', [FN171] and therefore
argued that 'whatever force and obligation the laws of one country
have in other, depends solely upon ... [the latter's] own express or
tacit consent'. [FN172]
This inconsistency in Story's approach is yet again a consequence of
the problem of how to characterize private international law in the
artificial division between voluntary national and mandatory
international law, when it contains elements of both. The difficulty
is embodied in Story's dependence on the ambiguous concept of
'comity', [FN173] and what has been described as his 'bizarre
syncretism' of (universal) natural law theories and (national) liberal
rights-based theories. [FN174] This uncertainty is reflected in
Story's argument that acts of State sovereignty create rights, [FN175]
which should be recognized and enforced by other States as a matter of
'comity', considered as an obligation of mutual respect between
nations, 'a sort of moral necessity to do justice, in order that
justice may be done to us in return'. [FN176]
Overall, however, Story's methodology is part of the trend away from a
natural law approach towards the emphasis on private international law
as part of national sovereign discretion which is the consequence of
the positivist theory of international law. The move towards a
national approach is a clear implication of the positivist theory of
international law--if the application of foreign law is purely a
matter of discretion, and can only be studied by examining State
practice and inductively forming rules, then the practice of each
independent sovereign State ought to be studied separately. This does
not mean that a State should not examine the practice of other States
when forming its own rules, only that foreign practice can never be
determinative or even constitutive of the private international rules
applicable in a State.
*29 3. Westlake
The influence of positivist international law theory on private
international law was carried further by Westlake. [FN177] Westlake's
position as a positivist is made very clear, in expressly rejecting
natural law as a basis for the study of law, [FN178] suggesting that
students have been 'cheated by the empty assertion of universal
agreement', [FN179] and (somewhat obviously) pointing out that in the
work of natural law theorists 'it sometimes looks as if im****tant
distinctions had been suggested by logic, without the aid of
experience at all'. [FN180]
Applying an interpretation of Story which emphasized the idea of
private international law as national law, Westlake examined 'private
international law jurisprudence ... regarded as a department of
English law'. [FN181] Although Westlake was praised for introducing
English private international law to continental theory, and his first
edition showed the influence of Savigny, [FN182] in fact he rejected
the international elements of Story's approach, including the
internationalism of his comparative methodology. Unlike Story,
Westlake largely confined his study to the cases of his jurisdiction,
in this instance English cases. [FN183] In justifying this Westlake
offered not only the argument that private international law is an
instance of domestic sovereignty, but referred to the binding
authority of precedents in English law, and noted the more practical
problem of adapting the legal categories used by continental authors
for use in respect of the common law. [FN184]
Westlake rejected Huber's addition of comity to the Grotian model,
arguing that 'comity might be a reason for receiving any rules on this
subject, but could hardly point out which to receive'. [FN185] In
rejecting comity as a legal rule, Westlake backed away from the
characterization of private international law as merely an exercise of
discretion by the judge, and argued that it must be *30 understood,
like all law, as commanded by the local sovereign [FN186] (consistent
with territorial sovereignty). [FN187]
Following this command conception of law, Westlake argued that private
international law disputes should be resolved simply by determining
which sovereign has the power to command the duty which is correlative
to the disputed right, [FN188] and examining as a matter of statutory
interpretation whether that power was in fact exercised. Once you have
identified which territorial sovereign had command, the rights which
have accrued under that sovereign command [FN189] are 'by comity, if
you please, though it is a comity almost demanded by a sentiment of
justice, treated as valid everywhere'. [FN190] Although Westlake
clearly emphasizes a national conception of private international law,
the idea of comity 'almost demanded' once again reflects the
difficulty of characterizing private international law within the
national- international dichotomy developed under the positivist
approach to international law.
4. Dicey
The culmination of this tradition, the final implication of the
positivist theory of international law for private international law,
is Dicey. [FN191] Dicey clearly characterized private international
law as part of the national law of each State, not part of any sort of
international law or international order. [FN192] Indeed, like
Westlake, Dicey argued that international law, in the absence of a
sovereign binding authority, is not strictly law. [FN193] Adopting the
positivist methodology, Dicey inductively derived English private
international law rules from the *31 (almost exclusively) English
cases he examined, and presented these almost as if they were a set of
sovereign commands. [FN194] While Dicey avowedly rejected comity as a
foundation for private international law (on the grounds of its
uncertainty), [FN195] he did adopt the idea of 'vested rights' from
Story and from Huber's third rule. [FN196] It is perhaps ironic that
Dicey's work (as carried on in successive editions of what is now
Dicey and Morris) has taken on almost the status of natural law within
the English study and practice of private international law, its
positivist form and methodology so embedded in the consciousness of
the English private international lawyer that it is itself 'tantamount
to being a source of law'. [FN197]
IV. NATURAL LAW
A. Natural law and international law
Despite the dominance of the positivist approach to international law,
natural law theory has continued to play an im****tant, if often
implicit, part in the development of international law. [FN198] Its
evolution has tracked a path away from dependence on religious
foundations, [FN199] towards expression as a consequence of some sort
of universal human quality, usually articulated in terms of reason or
rationality, [FN200] or as an aspect of a universal human society.
[FN201]
The 18th-century enlightenment may be identified as the high point of
the rationalist natural law approach to international law. [FN202]
Wolff, perhaps *32 unsurprisingly given that he was also a
mathematician, took a rationalist deductive approach to the study of
law, [FN203] rejecting the Grotian characterization of international
law as voluntary, on the basis that 'the law of nations is originally
nothing except the law of nature applied to nations'. [FN204]
Influenced by Leibniz, who applied mathematical methods and a concept
of universal reason to derive a system of ethics, [FN205] Wolff argued
that 'ideal' or 'moral' laws, the laws we ought to have, could be
identified by the exercise of human reason independently of either
divine revelation or practical observation. [FN206] Just as humans
needed society for self-fulfilment, Wolff argued that nations must
form an international society for their own fulfilment, whose rules
can be again derived by the application of reason. [FN207] We have
noted the positivist character of Vattel's reinterpretation of Wolff,
[FN208] which replaced his notion of reason with the voluntarist
concept of will, substituting Wolff's 'quasi-agreement' [FN209] with a
concept of international law as agreement. The natural law tradition
continued, however, in parallel to and despite the positivist
tradition which followed Vattel. Perhaps the most influential
enlightenment rationalist was Kant, who argued that only reason allows
us to derive the rules which will maximize our self-fulfilment in
society, including the moral rules that govern our freedom (which are
derived through Kant's categorical imperative). [FN210] This led Kant
to advocate a model of a federation of States, to establish a rule of
law between nations and preserve peace--an idea which has recently
been rejuvenated. [FN211]
The continued (if only partial) influence of natural law on
international law, and the view that it included private international
interactions, is nowhere more evidently manifest than in Blackstone's
definition of the law of nations as 'a system of rules, deducible by
natural reason, and established by universal consent among the
civilized inhabitants of the world; in order to decide all disputes,
to regulate all ceremonies and civilities, and to insure the
observance of justice and good faith, in that intercourse which must
frequently occur between two or more independent States, and the
individuals belonging to each'. [FN212] Put another way, 'the
universal law was law for individuals no less *33 than for States'.
[FN213] The influence of both these ideas is also present in Wheaton's
1836 Elements of International Law, which defines the law of nations
as 'those rules of conduct which reason deduces, as consonant to
justice, from the nature of the society existing among independent
nations; with such definitions and modifications as may be established
by general consent', [FN214] and which also includes analysis of rules
of private international law as part of international law. [FN215] By
1866, the analysis of private international law in Wheaton's text was
based on the view that it derived 'only from considerations of utility
and the mutual convenience of States'. [FN216]
One further way in which natural law theory survived the apparent
dominance of positivism in the 18th and 19th centuries [FN217] was by
using the formalism of the positivist approach to cloak itself.
[FN218] For example, an argument about human rights would be hidden
behind a (fictional) [FN219] justification that they were part of a
social contract, the product of an exercise of will by individuals in
a society. [FN220] Thus, the foundation of liberal democracy, its
claim to reflect individual freedom, arguably depends on 'the
redescription of natural law as natural rights', [FN221] a natural law
'creation myth'. [FN222] However, this redescription necessitated one
fundamental substantive change. These myths were generally based on a
conception of these rights as part of a national social contract, not
as universal. They thus emphasized the trend towards a national
conception of law also found in both a positivist and historicist
approach.
B. Natural law and private international law
The early part of this article examined the influence of natural law
theories in *34 the initial stages of the evolution of private
international law. Savigny, probably the most influential private
international law theorist of the 19th century, also drew heavily on
natural law processes of reasoning. [FN223] This is not to suggest
that Savigny's approach was abstract and unconscious of historical
development--indeed he was influenced by the detailed comparative work
of Story, [FN224] and he is a leading figure of the 'Historical School
of Jurisprudence' (largely the application of Hegelian philosophy to
jurisprudence). [FN225] However, his approach to private international
law was less influenced by historical concerns than his general legal
philosophy would perhaps suggest--no doubt because of the absence of
private international law rules in Roman law, discussed above.
Savigny accepted Huber's basic principle of territorial sovereignty
[FN226] and, similarly to Huber, sought to derive private
international law rules. He departed from Huber in negating any role
for comity by taking an additional axiom--the idea that there is an
international community of nations, [FN227] a 'community of law among
independent States'. [FN228] In part this was a factual recognition of
increased world trade pursuant to the industrial revolution, although
it was also clearly a more 'aspirational' claim. [FN229] From these
axioms, Savigny argued for an account of private international law in
which the basic unit of analysis is the 'legal relation'. He thus
rejected the statutist focus on the nature of the laws themselves,
arguing also that the statutist categories are 'incomplete and
ambiguous' and 'altogether useless as a foundation'. [FN230] He also
rejected the focus on the rights of the parties in Story and Huber
(later expressed as 'vested rights' by Dicey), [FN231] characterizing
this argument as 'a complete circle'. [FN232]
*35 Accepting the centrality of the legal relation, the role of
private international law becomes finding the law to which each
relation 'belongs', to 'ascertain the seat (the home) of every legal
relation'. [FN233] The bulk of Savigny's writing is an examination of
practically each known type of legal relation, to decide what rule
should be used to allocate it to a legal system. [FN234] He argued
that there must be a single 'proper' law for each relation-- on the
grounds that otherwise the equality of sovereigns would be violated.
The sorts of connections which would be relevant considerations show
the influence of his acceptance of territorial sovereignty--Savigny
rejected the 'personal' characteristics of the parties, favouring the
'location' of an event or relation****p, even one which is by its
nature abstract. Thus, for example, he favoured the physical location
of parties (their domicile) over their nationality (a personal
characteristic) as a relevant connection in 'locating' a legal
relation between them. [FN235]
It is central to Savigny's approach that the private international law
rules he developed were universal and common to all nations--part of
an international community of law, derived from the fact of a
community of nations. [FN236] This may be contrasted with the
conception of private international law resulting from the positivist
theory of international law described above, in which private
international law is (sometimes ambiguously) excluded from the domain
of international law, and conceived of as part of each State's
(voluntary) domestic law. Savigny rejected Huber's formulation of his
third law, and its dependence on comity, precisely because it did not
imply a sufficient degree of compulsion. [FN237]
Savigny did recognize some exceptions to the universality of this
system. [FN238] He acknowledged party intentions as an im****tant
connecting factor. [FN239] He accepted that the forum should govern
the law of procedure. [FN240] *36 He also recognized the existence of
mandatory laws within a forum State, which the judge must apply
regardless of choice of law rules. Savigny characterized these as
simply one type of a more general public policy exception to the
universality of private international law rules. Aside from arguing
against the use of these exceptions, [FN241] Savigny also argued that
they were anomalous and that 'it is to be expected ... that these
exceptional cases will gradually be diminished with the natural legal
development of nations'. [FN242]
In the late 19th century, Bar re-advocated Savigny's approach in
response to a rising positivist tide, arguing that the rules of
private international law can be derived from 'the nature of the
subject itself', [FN243] from the 'idea of an international community
of law which restricts all territorial laws, and defines their
competency'. [FN244] Like Savigny, he therefore argued that private
international law rules are not part of the law of each State, not
'dependent merely upon the arbitrary determination of particular
States', [FN245] but 'limitations belonging to the law of nations'.
[FN246] When Bar wrote, private international law approaches in
different States had vastly diverged from the model of a single
international system he and Savigny advocated. [FN247] Bar argued,
however, that this diversity of State practice ought to be
characterized largely as a series of 'errors and blunders'. [FN248]
The mere fact that international law is not applied 'correctly' in
each State should not, he argued, negate its existence as
international law--otherwise many other areas of international law,
many public international law principles, would be cast into doubt on
the same grounds.
Savigny's influence is too broad and significant to describe here.
[FN249] It is *37 most apparent in the use of 'proper law'-style rules
to determine the applicable law of a contract or tort in many private
international law systems. However, while Savigny's methods and
techniques remain popular, his underlying theory, with its commitment
to the existence of an international community of law, and his
conception of private international law as part of a single
international system, not as part of domestic law, has been largely
forgotten.
V. HISTORICISM
A. Historicism and international law
Historicism [FN250] emerged in the early 19th century as a distinct
approach to the study of law. It bears the hallmarks of both
positivist and natural law influences. [FN251] Like a positivist
approach, it places a great deal of im****tance on the study of
behaviour, of past practice. However, it interprets the history of
that behaviour as acting according to 'natural' laws (rather than
deriving laws from behaviour). Unlike a natural law approach, it does
not depend on 'reason' or religious belief, but on the abstract and
non-rational will of the people or nation, and thus only recognizes
positive law. [FN252] The historicist approach to international law in
the 19th century thus involved interpreting the behaviour of States
and peoples as 'progressing' towards ideal nation-States.
The origin of this approach may, like much of the natural law theory
discussed above, [FN253] be traced from those philosophers who,
following Plato, considered sociability an essential incident of the
human condition. It was manifest further in the political theory which
buttressed the French Revolution, in particular the emphasis on the
im****tance of nationality [FN254] which spread throughout Europe
during the Napoleonic wars. [FN255] These ideas may be characterized
as a reinterpretation of the basic concept of 'personal law'. [FN256]
Just as the *38 positivist approach emphasized the rise of
territorialism and conceived of sovereignty as the territorial
expression of a sovereign will, this approach, it might be argued,
emphasized the im****tance of personal connections, and conceived of
sovereignty as the expression of the will of the people.
The consequences of this theory were developed by Hegel. If the State
is conceived as a manifestation of the will of the people, then the
ideal State is, according to Hegel, not merely a reflection of will,
but the embodiment and perfection of popular will. [FN257] Thus,
arguing against an individualistic approach to human will (which, we
have seen, characterizes the positivist approach), [FN258] Hegel
argued that the individual could only achieve selfrealization, the
fulfilment of their will, through a process of collective
selfrealization, the fulfilment of a 'social will' (the spirit or
geist), and that history should be understood as a struggle towards
that fulfilment. The individual is not 'subjected' to the State, but
rather it is only in participating in a State and its social
institutions, in acting according to general will, that an individual
can be truly free, and not subject to historical forces. [FN259]
This approach has a number of implications for the study of
international law. [FN260] First, it identifies the (nation-)state as
the key unit of analysis, reinforcing the commitment to State
sovereignty under the positivist approach to international law.
[FN261] According to Hegel, 'each State is ... a sovereign and
independent entity in relation to others ... [and] has a primary and
absolute entitlement to be a sovereign and independent power', [FN262]
and 'since the sovereignty of States is the principle governing their
mutual relations, they exist to that extent in a State of nature in
relation to one another'. [FN263] However, this is not the formal,
'sterile' State of the positivist approach, but a nation-state which
evokes and invokes people, history, language, tradition and culture--
'whether a State does in fact have being in and for itself depends on
its content'. [FN264] Further, it provides sup****t for the idea of
self-determination, that 'peoples' have a right to gain self-
fulfilment through collective expression as a 'State'--an influence
felt in the 'unification' of the German and Italian States in the 19th
century.
On the other hand, however, in its commitment to the idea of a
'progress', and departure from the positivist's formal equality, it
also can be taken to *39 sup****t a hierarchy of the development
[FN265] and moral authority of States. [FN266] Thus, as we have
already seen, [FN267] in the early 19th century (in particular in the
1815 'Concert of Europe') the 'great powers' of Europe felt it morally
justified to attempt to dictate the internal affairs of other States
and to control the balance of power within Europe. This sense of moral
hierarchy implies the pre-existence of natural laws of international
law defining that hierarchy, contrary to the scientific approach of
positivism, but shares the positivist emphasis on deriving these laws
from the (historical) study of actual State behaviour. [FN268]
B. Historicism and private international law
As noted above, the historicist account differs from the positivist
theory of international law in its conception of sovereignty as
defined through personal connections with the nation-state. This may
be contrasted with the theory of territorial sovereignty which we have
seen dominates both positivist approaches to private international law
and even Savigny's more 'natural law'-inspired approach.
The leading advocate of the historicist approach in private
international law was Mancini, who argued, most famously in an 1851
public address entitled 'Nationality as the Basis of the Law of
Nations', [FN269] for an international system (including private
international law rules) founded on the concept of nationality.
[FN270] Like Savigny, Mancini started from the assumption that a legal
'community of nations' existed, but with a conception of the nation as
founded *40 on personal connections (embodying, in the Hegelian sense,
the people and their history and culture) rather than territorial
power.
On the basis of this approach, Mancini argued that the applicable law
in a private international law dispute should (generally) be
determined by the nationality of the parties. [FN271] As a
historicist, he naturally argued that this was the culmination of a
trend in the development of legal history--he drew on the tradition of
jurisprudence which emphasized the personal basis of law to argue that
a central role for the nationality principle was an inevitable
historical development. [FN272] Again like Savigny, Mancini rejected
the positivist approach which gave priority to individual State
sovereignty. Mancini thus also rejected the idea that the application
of private international law rules is inherently discretionary,
expressed in the doctrine of 'comity'. He saw the recognition by a
State of the national law of another person in a legal dispute as a
requirement of international law--to deny giving effect to a person's
national law was to deny both the nation and the person themselves.
[FN273] Thus, like Savigny, Mancini viewed private international law
rules as essentially part of a broader community of law--in his case,
a community of nations rather than Savigny's community of territorial
States. This was the position adopted and advocated by the Institut de
Droit International under the early influence of Mancini. [FN274]
Again, this must be contrasted with the way (explored above) [FN275]
in which the positivist conception of international law led to a model
of private international law as a discretionary part of the law of
each State.
Of course Mancini did not exclude the operation of local law in some
cir***stances. He drew a distinction, reminiscent of the statutists,
[FN276] between personal and public laws. Personal laws were part of
the expression of the individual will in the State, a reflection of
their personality and personal autonomy, and must be given effect
internationally. [FN277] Public laws, however, were part of the
definition of national character by a nation. [FN278] These were both
im****tant enough to override the application of foreign law, and also
specific enough to national character to be limited to the territory
of the State. This concept of a 'public law', which is similar but
arguably significantly broader than Savigny's 'public policy'
exception, was reflected in the broadening of the concept of 'ordre
public' in civil law systems in the 19th centuries, particularly in
France and Belgium. [FN279]
*41 The direct influence of Mancini can be identified in the use of
nationality as a connecting principle in private international law in
the Italian Civil Code of 1865 [FN280] and, at least prior to the
European Union, it was also prominent in other European States.
[FN281] The concept of nationality was also enormously influential in
defining the character of States in South America, and this is
reflected in their private international law rules. [FN282] Perhaps
even more significantly, and somewhat ironically given his commitment
to a single international community of law, Mancini's influence may be
felt in the decline in universality of private international law in
the 19th century, [FN283] both in a practical and theoretical way. The
practical impact was that while much of the world adopted nationality
as a principle in private international law, much of the world also
remained committed to the more factual test of domicile. [FN284] This
has remained a fundamental division which has proved a lasting
obstacle in attempts to harmonize private international law rules
through treaties. The theoretical impact was that, in his general
emphasis on the function of law as an expression of national identity,
of the will of the people, Mancini arguably contributed to the trend
towards the diversification of national legal systems in the late 19th
century away from a sense of a unified international system, which we
will now discuss further.
VI. THE END OF THE PRIVATE HISTORY OF INTERNATIONAL LAW?
A. The decline of universality
We have seen above that theorists like Savigny and Mancini argued for
an international, universal approach to private international law, and
saw the differences between national approaches as 'errors' or
'anomalies' [FN285] which would decline over time. In fact, the 19th
century saw a significant increase in the diversity of national
approaches. In part this was a reflection of rising nationalism, as
sovereign States (including the emergent Italy and Germany) emphasized
their individuality and unique history and culture as part of their
definition of national identity, for example through projects of
national legal codification. [FN286] In part it also corresponded with
changes in the idea of the role of law within society, what we might
now call the development of the welfare state, where increased
regulation of society was advocated in advance of goals *42 of public
policy (or 'ordre public'), [FN287] not in an attempt to reflect or
create an abstract legal order. [FN288] Another factor was more
practical--as each State developed an increasing depth of
jurisprudence as part of its legal tradition, it simply became less
necessary to appeal to foreign or Roman sources to fill real or
perceived gaps in the law of a State.
Recognizing this diversity, in the late 19th century writers such as
Kahn [FN289] argued that Savigny's ideal of a universal system of
private international law (as part of a universal system of
international law) was not merely incorrect or inadvisable, but in
fact impossible. Kahn argued that Savigny's approach wrongly assumed
that the categories of legal relations were themselves universal.
Without this, he argued, it is impossible for different legal systems
to apply the same rules to make the same private international law
decisions. [FN290] In fact, according to Kahn, the divergence of legal
systems in the late 19th century meant that national legal systems
were too disparate to accommodate any universal categories.
This argument was reinforced by the state of private international law
rules in the late 19th century. A wide variety of different types of
rules were adopted, [FN291] arguably without a shared concept of their
purpose. Kahn's approach, which argued that private international law
rules were an aspect of the law of the forum, simply seemed to make
more sense of the world of private international law at the end of the
19th century. Kahn did not reject Savigny's general methodology, and
considered his idea of locating each legal relation in space, weighing
various contacts in order to identify its seat, as a useful metaphor.
However, he rejected the idea that a single natural forum might be
identified in each case, arguing instead that each State could have
its own idea of what the proper law was. Thus Savigny's methodology
remained influential, but his idea of a universal system of private
international law as part of an international community of law was
transformed into the diverse and discrete national private
international law projects which continue today. [FN292]
*43 The same story may be told from a different perspective, the
perspective of the theory of international law. The influence of the
natural law and historicist approaches to private international law
has been vastly overshadowed by the implications of positivist
international law theory. The dominant trend of private international
law, as we have seen above, is of its gradual exclusion from the
domain of international law. [FN293] The positivist 'revolution' in
international law led to an emphasis on State sovereignty, and a
strict (albeit problematic) division between the internal and external
affairs of States, the domestic and the international. [FN294] This
was strategically useful for the universalization of international law
which took place in the late 19th century--a minimal 'thin'
international law could be consistent with the largest number of
diverse States. The positivist approach rejected the existence of an
international society, instead conceptualizing international law as a
product and reflection of the will of individual States. [FN295]
Deference to a foreign State's territorial sovereignty, it was argued,
implied the need for private international law rules--but because of
State sovereignty, these rules were characterized (problematically) as
discretionary, an exercise of 'comity'.
=46rom this discretionary idea of private international law, and the
strict division between the internal and external adopted under the
positivist conception of international law, the discipline of private
international law became increasingly focused on the study of the
behaviour of States, through observation of cases. A diverse range of
national responses to the problems of private international law became
equally legitimate or lawful, further disintegrating the practice of
private international law into distinct national disciplines,
separately studying the cases of each State. This may be contrasted to
the conception of public international law which, despite the
positivist 'revolution', has maintained and universalized a unitary
conception of 'public' international law rules, through a retreat to
formalism and in part through the exclusion of the 'private' or
domestic from its domain. [FN296] This elevation of public over
private international law is expressed in the view that '[t]he
obligation to apply public international law overrides the ordinary
rules of private international law', [FN297] and that the 'principle
of subordination of considerations or rules in the sphere of conflict
of laws to considerations and rules of public international law is
absolute on the inter-state plane'. [FN298]
*44 An economic analysis suggests yet another perspective on this
story. [FN299] The general division between 'public' and 'private'
which crystallized in the 19th century has long been considered
problematic. [FN300] Critics have pointed to it as a mechanism for the
exclusion of some domains from the regulation (or protection) of the
law. It has been argued that this exclusion implements the liberal
economic conception of private interactions as occurring in an
insulated regulatory space. [FN301] At an international level, the
'traditional' division between public international law and private
international law has similarly isolated private international
interactions from the subject matter of international law. [FN302]
Private international law is not merely part of national law, but part
of national private law, the domain of private interests. This
division may therefore be viewed as an implementation of an
international liberalism which seeks to establish a protected space
for the functioning of the global market. Thus, it has been argued
that 'the public/private distinction operates ideologically to obscure
the operation of private power in the global political economy'.
[FN303] The contem****ary struggle to develop mechanisms by which
public international law can (re)regulate the increasingly im****tant
domain of private international interactions is, from this
perspective, both a challenge to this model, and a sign of its
success.
B. The resilience of the myths of international law
This division of public and private international law was not a
necessary response to the problem of reconciling international law
with State sovereignty. In fact, in the 20th century public
international law has tended to resolve this problem by increasingly
qualifying the conception of sovereignty. But if private international
law became conceptualised as national law because of a historical
contingency, and the cir***stances which precipitated this
understanding have changed, why does this understanding continue
unchallenged?
*45 The answer is that the theory of private international law as part
of domestic law is self-perpetuating. If private international law is
considered to be part of domestic law, it draws the boundaries of the
subject at the boundary of the State. It conceives of itself in a way
which formally excludes any role for international sources or norms.
The theory of private international law as part of domestic law does
not merely reflect international norms (in particular, the norm of
State sovereignty), it is actively engaged in constructing
international society according to those norms. By defining private
international law as part of domestic law, it defines private
international lawyers as domestic, not international; it emphasizes
their attachment to a sovereign territory. In practice, judges,
academics and practitioners are required to look only at domestic
cases and domestic interests in formulating, considering and
evaluating private international law decisions and rules. This
conception of private international law is not necessarily accurate or
effective, as it does not in fact reflect the reality of the practice
of private international law. It is also not necessarily coherent, as
it ignores the international aspects of private international
disputes. However, the theory of private international law as
discretionary domestic law negates the possibility of
reconceptualizing the subject to reflect this reality and escape this
incoherence--because of the way it defines its own boundaries, it
operates as a self-determining, self-limiting, self-constituting
system.
There is another side to this question. Why is the history of private
international law as a part of international law a 'private' history--
why is it not better known? An answer to this question may only be
tentatively suggested here. We commenced this article by identifying
two myths of international law, the myth that private international
law was necessarily domestic and the myth that public international
law was only recently expanding into the domain of the 'private'. It
is perhaps the power of this second myth that explains the reticence
of public international lawyers to acknowledge their 'private'
history. This myth is a story of public international law as a purely
expanding, developing discipline. It ****trays the history of public
international law as (a historicist) evolution. By leaving out the
private history of international law (its rise and its decline), the
history of international law, and also the present development of
international law, appears more natural, more progressive, more
inevitable. The engagement of international law with the private
domain appears like a sign of maturity, not a return to the past.
C. Private international law as national law
In summary, the idea of private international law as necessarily and
purely a part of national law may be understood as a product of two
late 19th-century phenomena. First, it is a product of the fact of
increased diversity in national legal systems, including in national
private international law rules. Secondly, it is a product of the
theoretical emphasis on sovereignty, which characterized *46 the
decisions of States with respect to private international law problems
as a matter of discretionary comity. This was in part precipitated by
the problematic divisions created between international and domestic
law, and public and private law, as part of public international law's
strategy of universalization, and the privatization of regulation as
part of the growth of a global market economy.
The effects of this conception of private international law as
national law include the diversity and complexity of modern rules of
private international law, the understanding of private international
law as a mechanism for the protection of national interest or the
enforcement of national values, and hence the (problematic) focus in
modern private international law theory on 'justice' and 'fairness'.
Under this limited model, private international law does not
contribute much to the ordering or systematizing of international
private relations. In fact it frequently adds to the complexity of
international dealings and international disputes. In subjecting
disputes to a wide range of rules, often operating with broad and
flexible exceptions, it creates uncertainty and expense, and in so
doing it may even reduce the effectiveness of both national and
international systems of regulation. It bears neither the character
nor the function which was envisaged for private international law by
the statutists or by Huber, Savigny, or Mancini.
D. Private international law as international law
This article has sought to be a reminder of the possibility of a
different idea of private international law, the old idea of private
international law as international law. Private international law was
invented as a mechanism for the reconciliation of higher level natural
law with the existence of diverse laws in different Italian city-
states. [FN304] It was thus conceived of as part of natural law, part
of the law of an international system. This conception was gradually
transformed as private international law became a part of national law
in conjunction with the rise of the sovereign nation-State in the late
19th century. However, the theoretical division between the
international and national domains is coming under increasing pressure
from the growth of private international interactions, as an aspect of
the range of phenomena loosely called globalization. The much
discussed decline in the sovereign nation-state in the early 21st
century seems an appropriate time for reconsideration of the nature of
private international law in both theory and practice.
This article is only the first step, perhaps the easiest step, in this
reconsideration--it demonstrates the possibility and the necessity for
it to occur. It does not, however, attempt a response to the questions
which it raises. What extent and type of connection should there be
between public international law and private international law? What
limits, if any, should there be on the scope *47 of public
international law? What types of international norms should influence
private international law, and in what ways? While responses to these
questions are beyond the scope of this paper, the following brief
comments may suggest both a destination and a way forward.
An increasingly 'globalized' world requires and creates new forms of
international ordering, new international norms. In its combination of
an international order with national regulation, private international
law could directly confront the false dichotomy of the international
and the national, and provide a method of ordering of the
international system as an alternative or complement to the State-
based approach of public international law. The operation of uniform,
internationalized rules of private international law would increase
the certainty of private international transactions and dealings. It
could also increase the effectiveness of the regulation of those
dealings according to international law, which presently, in a State-
centred public international law, struggles to normalize the
increasingly im****tant range of private international interactions. In
so doing it would increase the effectiveness of the enforcement of
international legal rights, particularly those attributed to
individuals. [FN305] International lawyers--at least those
international lawyers committed to ensuring a structured, ordered
international system but not wedded to the ideas and methods of
positivist public international law--might again view private
international law as a legitimate 'tool' of international law.
VII. CONCLUSIONS
The earliest private international law theories emerged out of
classical ideas of natural law, in particular the theory that the
world reflected a sort of universal natural order, which could be used
to allocate disputes between legal systems. The invention and
development of the statutist approach reflected the competing
conceptions of this legal order as personal or territorial.
These natural law ideas were affected by a positivist 'revolution' in
international law. Following Grotius, international law was separated
from natural law, and increasingly the law of nations became simply
the study of the way States actually behaved, emphasizing their
sovereign will. This revolution in thought about the international
order, the positivist approach to international law, was reflected in
private international law in two ways; first, in its justification, as
it was reconceived as a voluntary deference to a foreign sovereign
(rather than a natural law requirement). Secondly, in its application,
as private international law rules were conceived as a matter of
(territorial, discretionary) comity, and thus a part of the domestic
law of each State. In the late 19th century this distinction was
formally reflected in a separation of private international law from
*48 public international law, as part of the broader, problematic
division of the internal affairs of the State from the external, and
the denial of any sense of international system or order beyond the
sovereignty of independent States.
In the 19th century, two other private international law approaches
competed with the approach implied by the positivist theory of
international law. The natural law and historicist approaches shared a
model of private international law as part of a substantive and
universal international law, necessarily implied by the existence of
an international system, differing largely in their conception of that
system as basically territorial or personal. These approaches, while
overshadowed by the positivist approach, demonstrate the possibility
of conceiving of private international law in different ways.
An extrinsic history of private international law demonstrates that
the history of conceptions of international order is integral to the
history of private international law. This is particularly obvious in
theories of private international law which directly reflect a
conception of an international system, such as the natural law theory
of Savigny or the historicist theory of Mancini, or even the competing
international systems of the statutists. It is equally evident,
however, even in those theories of private international law which
seek to deny the existence of an 'international system'--in the
positivist approach to international law which prioritizes the
sovereignty of individual States. The international norm of
'sovereignty' (in all its ambiguity) is directly reflected in private
international law rules which echo that conception of the
international order, and in the theory of 'comity', which (just as
ambiguously) views private international law as a matter of State
discretion. Even the separation of private international law from
international norms in the late 19th century may itself be seen as the
result of international norms which advocated a sharp distinction
between the internal and external aspects of the State.
This historical analysis of the intersecting histories of public and
private international law reveals the falseness of the assumptions we
set out to address. Private international law is not necessarily only
a part of the domestic law of States. This theory and understanding of
private international law is a contingent and indeed problematic
response to a set of international norms. Other conceptions of private
international law, which view it as part of a broader system of
international law, are not only possible but have been widely held in
the past. In turn this undermines the assumption that the concern in
international law with 'private' or 'internal' matters is a recent
phenomenon. In fact before the 'positivist revolution' in
international law took full effect, international law was assumed to
extend to substantive matters concerning the internal regulation of
States, including private international law. The recent expansion of
international law, which follows a period of universalization with a
minimal, formal model of international law, is not an innovation but a
return to old territory. Private international law, developed over
centuries as a system for the regulation of private aspects of
international *49 society, offers the potential for a greater level of
enforcement of international norms in the increasingly im****tant
domain of private international interactions. The modern metamorphosis
of international norms requires a reconceptualization of contem****ary
private international law; the international law of the past suggests
a model for the way this might be pursued. A greater awareness of the
achievements and failures of this old international law and its
theorists might, it is hoped, pave the way for a greater understanding
and development of 'new' international law by the new international
lawyers who walk, too often unknowingly, in old footsteps.
FN Gonville & Caius College, University of Cambridge. I am
grateful to the anonymous referees of the International and
Comparative Law Quarterly, and to Professor Philip Allott, Professor
Erik Jayme, Dr Pippa Rogerson, Mr Tim Stephens, and particularly Mr
Richard Fentiman for their helpful comments and suggestions.
FN1. M Shaw International Law (5th edn CUP Cambridge 2003)
(henceforth, Shaw (2003)) 42-7; A C*****e International Law (OUP
Oxford 2001) (henceforth, C*****e (2001)) 11-12.
FN2. Thus, private international law is a 'branch of English law'
in L Collins (ed) 'Dicey and Morris on The Conflict of Laws' (13th edn
Sweet & Maxwell London 2000) (henceforth Dicey and Morris (2000)) 3;
'the rules of private international law are part of the internal law
of the State concerned' in Oppenheim's International Law (9th edn
Longman Harlow 1992), 6; 'Conflict of Laws is ... part of the law of
each State' in the Second ReStatement of the
Conflict of Laws (American Law Institute St Paul Minn 1969) s 2;
'Principles and rules of the conflict of laws are not international,
they are essentially national in character' in JG Castel Canadian
Conflict of Laws (3rd edn Butterworths (Canada) Toronto 1994) 3; and
'Private international law ... is essentially municipal in origin and
in legal effect' and 'each State is at liberty to determine the
contents of its own national rules of private international law' in J
Verzijl International Law in Historical Perspective vol 1 (A Sijthoff
Leyden 1968) 190. See also the Serbian and Brazilian Loans cases,
France v Yugoslavia; France v Brazil PCIJ Ser A, nos 20-1 (1929).
FN3. On this concept see, eg P Allott The Health of Nations (CUP
Cambridge 2002) (henceforth Allott (2002)) 340.
FN4. Note the criticism of Alan Watson's Joseph Story and the
Comity of Errors (University of Georgia Press Athens 1992) in GB Baker
'Interstate Choice of Law and Early-American Constitutional
Nationalism. An Essay On Joseph Story and the Comity of Errors: A Case
Study in Conflict of Laws' (1993) 38 McGill LJ 454 (henceforth Baker
(1993)).
FN5. 'What you hold to be true about the world depends on what you
take into account, and what you take into account depends on what you
think matters'--S
Marks The Riddle of All Constitutions (OUP Oxford 2000) 121.
FN6. Dicey and Morris (2000) 3; see similarly P North (ed)
Che****re and North's Private International Law (13th edn Butterworths
London 1999) (henceforth Che****re and North (1999)) 3; JG Collier
Conflict of Laws (3rd edn CUP Cambridge 2001) (henceforth Collier
(2001)) 3. A similar definition is used in public international law
texts--Oppenheim's International Law (9th edn Longman Harlow 1992) 6
defines private international law as 'the rules developed by States as
part of their domestic law to resolve the problems which, in cases
between private persons which involve a foreign element, arise over
whether the court has jurisdiction and over the choice of the
applicable law'; Shaw (2003) states at 2 that 'public international
law is [in contrast to private international law] not simply an
adjunct of a legal order, but a separate system altogether'.
FN7. B Blagojevic 'Th=E9ories des Statuts =E0 la lumi=E8re de
l'histoir=
e
g=E9n=E9rale de l'=E9volution de la soci=E9t=E9', in De Conflictu Legum,
Es=
says
Presented to RD Kollewijn and J Offerhaus (AW Sijthoff Leyden (special
issue of Netherlands International Law Review 1962)--'In every study
of the history of private international law ... it is necessary to
clarify each phenomenon in the light of the conditions and
cir***stances of the place and time where and how
these phenomena manifested themselves' (cited and translated in H
d'Oliveira 'The EU and a Metamorphosis of Private International Law'
in J Fawcett (ed) Reform and Development of Private International Law
(OUP Oxford 2002) (henceforth d'Oliveira (2002)) at 118.
FN8. The sort of explanatory history set out in this article is in
some ways an expansion or enlargement of the typical private
international law history described above, through the addition of
external elements. Like a more typical history, it is vulnerable to
the criticism that in characterizing history as a series of 'epochs'
it does not pay sufficient regard to the diversity and complexity of
approaches adopted by different people at different times during the
defined era: see M Koskenniemi 'Book review: William Grewe: The Epochs
of International Law' (2002) 51 ICLQ 746. In its history of private
international law theories and theorists, this article should not be
read as a claim that these ideas were universally accepted or
uniformly conceived, but only that they were (to differing degrees)
influential in the development of the discipline. Thus, in its history
of international norms (eg in the division between positivist, natural
law and historicist approaches), this article should not be read as a
claim that the norms that were adopted are coherent or conceptually
independent (in fact often they are not, and perhaps ought not to be--
see H Berman 'The Historical Foundations of Law' (2005) 54 Emory Law
Journal 13), but only that they were adopted and advocated, and
that they were and remain influential.
FN9. This article focuses on European law, because most of the
world's international law (public and private) has been adopted or
adapted from the European tradition. A separate tradition of private
international law, which was similar to the 'personal law' approach
discussed in II.B.1 below but probably predates the European
tradition, was apparently developed in China (see JR Paul 'Comity in
International Law' (1991) 32 Harv Int LJ 1 (henceforth Paul (1991))
35) but later declined (see R Graveson 'The Origins of the Conflict of
Laws' in Bernstein et al (eds), Festschrift f=FCr Konrad Zweigert (Mohr
T=FCbingen 1981) (henceforth Graveson (1981)) 96ff, who also considers
the origins of private international law both within and outside the
European tradition, particularly in Africa). Contem****ary practice in
China reflects the European tradition: see Q Kong and H Minfei 'The
Chinese Practice of Private International Law' (2002) 3 Melbourne
Journal Intl Law 414, who suggest (at 415) that 'Private international
law was introduced in China in the early 1980s'.
FN10. H Yntema 'The Historic Bases of Private International
Law' (1953) 2 Am J Comp L 297 (henceforth, Yntema (1953)) at 317.
FN11. Understanding the ideas and conditions under which private
international law rules failed to evolve also helps us to understand
their foundations--see Graveson (1981) 95 ff. Note, however, that C
Phillipson in The International Law and Custom of Ancient Greece and
Rome (Macmillan London 1911) (henceforth Phillipson (1911)) identifies
'rudiments' of private international law in ancient Greece (192), and
'elements' of private international law in ancient Rome (265). Note
also the ancient 'conflict of laws' rules identified by P Vinogradoff
in 'Historical Types of International Law' in Collected Papers
(Clarendon Press Oxford 1928) vol II 248, at 262 ff; see also Graveson
(1981) 100.
FN12. Savigny argued that 'a right understanding and criticism of
modern principles and practice is only possible after a thorough
examination of the doctrines of the Roman law': FC von Savigny A
Treatise on the Conflict of Laws and the Limits of their Operation in
Respect of Place and Time (T Clark Edinburgh 1880) (translation with
notes by William Guthrie) (henceforth Savigny (1880)) 50.
FN13. S Neff 'A Short History of International Law' in M Evans
International Law (OUP Oxford 2003) (henceforth Neff (2003)) at 33;
Shaw (2003) 17; JM Kelly
A Short History of Western Legal Theory (Clarendon Press Oxford
1992) (henceforth, Kelly (1992)) 14 ff, 47 ff--noting this as a
reaction against the tendency towards relativism and self-interest of
the Sophist school.
FN14. B Nicholas An Introduction to Roman Law (Clarendon Press
Oxford 1975) (henceforth Nicholas (1975)) 57-8.
FN15. M Wolff Private International Law (2nd edn Clarendon Press
Oxford) (1950) (henceforth Wolff (1950)) 20; Yntema (1953) 300; but
see Kelly (1992) 77 who argues that Roman law contained the
foundations of international law concerning the laws of war; see also
H Wheaton Elements of Interational Law (B Fellowes London 1836)
(henceforth, Wheaton (1836)) 6 ff.
FN16. F Juenger 'A Historical Overview', in Selected Essays on the
Conflict of Laws (Transnational Publishers Ardsley NY 2001)
(henceforth, Juenger (2001a) 4- 5; Wolff (1950) 20; Bar, L von, 'The
Theory and Practice of Private International Law' (2nd edn W Green &
Sons Edinburgh; trans by GR Gillespie 1892) (henceforth Bar (1892)) 11
ff.
FN17. See Phillipson (1911) 301 for an alternative view. Other
authors have stressed that it is im****tant not to underestimate the
extent of the
development of international law in the ancient world--see, eg, D
Bederman International Law in Antiquity (CUP Cambridge 2001); S
Verosta International Law in Europe and Western Asia between 100 and
650 AD (1964) 113-III Recueil des Cours 485; A Nussbaum 'The
Significance of Roman Law in the History of International Law' (1952)
100 U Pa L Rev 678.
FN18. Kelly (1992) 61 ff.
FN19. Shaw (2003) 16 ff; HS Maine Ancient Law' (J Murray London
1861; 1930 edn with notes by F Pollock) (henceforth Maine (1861)) ch
3; TA Walker A History of the Law of Nations (CUP Cambridge 1899) 45;
H Wheaton History of the Law of Nations in Europe and America (Gould
Banks New York 1845) (henceforth Wheaton (1845)) 26. The ius gentium
also contained the antecedents of public international law--see
Phillipson (1911) 94; P Vinogradoff 'Historical Types of International
Law' in Collected Papers (Clarendon Press Oxford 1928) vol II 248, at
269 ff.
FN20. See AT von Mehren 'American Conflicts Law at the Dawn of the
21st Century' (2001) 37 Willamette L Rev 133; AT von Mehren 'Special
Substantive Rules for MultiState Problems: Their Role and Significance
in Contem****ary Choice-of-Law Methodology' (1974) 88 Harv L Rev 298;
FK Juenger Choice of Law
and MultiState Justice (Martinus Nijhoff Dordrecht; London 1992);
discussion in S Symeonides 'American Choice of Law at the Dawn of the
21st Century' (2001) 37 Willamette L Rev 1 at 12 ff; see also II.D
below.
FN21. Kelly (1992) 62-3; Nussbaum (1954) 13 ff.
FN22. Nicholas (1975) 58.
FN23. S Hall 'The Persistent Spectre: Natural Law, International
Order and the Limits of Legal Positivism' (2001) 12 EJIL 269
(henceforth Hall (2001)) 293 ff; H Rommen The Natural Law: A Study in
Legal and Social History and Philosophy (B Herder Book Co St Louis
1936; trans by T Hanley 1947) (henceforth Rommen (1936)) 29; Wheaton
(1845) 27 ff; Wheaton (1836) 7.
FN24. Gaius 'Institutes', cited in Nicholas (1975) 54 ff. See also
Juenger (2001a) 6; Neff (2003) 33-4.
FN25. Rommen (1936) 25 ff; Wheaton (1845) 29.
FN26. Nussbaum (1954) 14.
FN27. The ambiguity between these two senses of 'ius gentium' has
been im****tant as a justificatory mechanism for legal systems deriving
rules from Roman law--eg in the selective adoption of Roman law
principles by English courts. See II.D below; Juenger (2001a) 20-2;
Nussbaum (1954) 15 ff, 86; Maine (1861) 59-60, 107 ff, 128 (note by
Pollock).
FN28. It has been suggested that these predated the Roman world--
see, eg S Kassan 'Extraterritorial Jurisdiction in the Ancient
World' (1935) 29 AJIL 237.
FN29. Wolff (1950) 21; Savigny (1880) 58 ff; K Lipstein 'The
General Principles of Private International Law' (1972) 135-I Recueil
des Cours 97 (henceforth Lipstein (1972)) 107 ff; Nussbaum (1954) 41.
FN30. The idea of a 'personal' connection was more flexible than
this might seem to imply. Juenger (2001a) 7 points out that this
extended to condoning a fictional declaration of ethnicity as a sort
of exercise of party autonomy. Bar (1892) 27 notes that even a private
contract may be analysed (and was at this time and subsequently) as a
form of tem****ary 'subjection' to the authority of a State. This form
of reasoning was echoed by Grotius, and noted again by Huber--see J
Weinstein 'The Dutch Influence on the Conception of Judicial
Jurisdiction in 19th Century America' (1990) 38 Am J Comp Law 73
(henceforth Weinstein (1990)) 80-1.
FN31. Bar (1892) 17-21; Maine (1861) 112. Thus Westlake commented
that 'Within each of the new kingdoms, even in the same city, Roman
and Lombard, Frank, Burgundian, and Goth might all be found, each
living under his own personal law, very much as the Englishman, Hindoo
and Mahometan now live together in India under their respective laws':
J Westlake A Treatise on Private International Law with principal
reference to its practice in England (W Maxwell London 1880)
(henceforth Westlake (1880)) 11; the passage appears to have been
adapted from Wheaton (1845) 31; see also Yntema 'The Comity
Doctrine' (1966) 65 Michigan Law Rev 9 (henceforth Yntema (1966)) 10;
Phillipson (1911) 284.
FN32. Wolff (1950) 22.
FN33. Even beyond the period of the renaissance, Italian city-
states resolved some practical problems through treaties which invoked
and reinforced conceptions of personal law: Neff (2003) 36. For
example, agreements were entered into between Italian and Islamic
States, allowing Italian traders dealing with other Italians in
Islamic States to use Italian law and courts to resolve their
disputes. This idea was reflected in the system of
capitulations--agreements (usually not reciprocal) which enabled
European powers to establish their own legal community within a
foreign State: C*****e (2001) 23 ff; Nussbaum (1954) 55 ff; G Simpson
'Two Liberalisms' (2001) 12 EJIL 537 at 544 ff. In the 19th century
the system of capitulations was in some way continued through the use
of judicial consuls (see Nussbaum (1954) 208), the applicability of
laws in the Turkish empire was (still) largely based around the
personal laws of the parties, and in many countries disputes involving
Jewish persons (eg the validity of a Jewish marriage) were tried
according to Jewish law, at the time a purely personal, tribal law
without a territorial situs: see Savigny (1880) 58-9, 60-2 (Guthrie
note); Bar (1892) 20-1; J Westlake A Treatise on Private International
Law or The Conflict of Laws with principal reference to its practice
in the English and other cognate systems of jurisprudence (W Maxwell
London 1858) (henceforth Westlake (1858)) 134-47. The continuation of
this practice in the colonial subcontinent is also noted by Westlake
(see n 31 above), although of course, particularly in the colonial
context, the extent to which these recognitions of personal law are
signs of the acceptance of a theory of world order (and not merely an
exercise of power) is debatable, given the lack of reciprocity in the
arrangements. In any case, the influence of the personal law approach
is still felt today, for example, in the diverse religious laws
recognized in India and in some Islamic States.
FN34. Often this is described as a result of the movement of
scholars west because of the decline and eventual fall in 1453 of the
Byzantine empire, although much influence predates this period--
communication is more likely to be the cause than migration. See
Nicholas (1975) 45 ff; Nussbaum (1954) 54-5; Kelly (1992) 82 ff, 165
ff--who also suggests (at 86, 120), however, that it was not the
Byzantines but the Islamic expansion to the west which transmitted
much of this knowledge.
FN35. Neff (2003) 34. Note that 'scientific' really carries two
meanings. The sense being analysed here is the idea of deductive
reasoning from first principles, rather than the inductive
experimental science which founds positivist theory, which is
discussed in III.A below.
FN36. Neff (2003) 34; Kelly (1992) 142. The form of 'natural law'
which derives from the presumption of an objective sense of reason is
probably most closely related to the Roman conception--see Kelly
(1992) 57 ff.
FN37. Rommen (1936) 53ff.
FN38. Aquinas, 'Summa Theologica', Ia 2ae 91 2.
FN39. Aquinas, 'Summa Theologica', Ia 2ae 93 3, cited in Kelly
(1992) 136. The idea of 'right reason' was again inherited from the
Stoic school--see Rommen (1936) 23.
FN40. Shaw (2003) 21; Hall (2001) 294.
FN41. Note the parallel between the 'deductive' method and the
idea of a 'descending' pattern of justification in M Koskenniemi From
Apology to Utopia: The Structure of International Legal Argument
(Lakimiesl=FCton Kustannus Helsinki 1989) 41.
FN42. It is sometimes argued that this phenomenon was a result of
the same Islamic threat which provided the Italian renaissance with
scholars from the Byzantine empire--see above n 34; Juenger (2001a) 9.
Kelly (1992) 117ff suggests that the city organization survived from
the Roman empire.
FN43. eg uniform commercial laws facilitated trade, culminating in
the development of a lex mercatoria which was ultimately widely
accepted across Europe: see II.D below; Nussbaum (1954) 27 ff; JH
Baker 'The Law Merchant and the Common Law before 1700' (1979) 38
Cambridge LJ 295 (henceforth Baker (1979)); F Juenger 'The lex
mercatoria and Private International Law' (2000) 5
Uniform LR 171.
FN44. Nussbaum (1954) 41.
FN45. See II.B.2 above (noting that human law participated in the
divine only through the application of 'right' reason); 'Summa
Theologica' Ia 2ae 95 4; Nussbaum (1954) 38; F Suarez On Laws and God
the Lawgiver (Clarendon Press Oxford (trans by GL Williams 1944) 1612)
Bk 2; H Bull 'Natural Law and International Relations' (1979) 157 in
Hedley Bull on International Society (Macmillan Basingstoke 2000)
(henceforth Bull (1979)) at 160 ff.
FN46. Yntema (1966) 10-11.
FN47. See III.C below.
FN48. Or perhaps would only hear disputes to which it could apply
its own law. See Wolff (1950) 22; M Gutzwiller Geschichte des
Internationalprivatrechts (Helbing & Lichtenhahn Basel; Stuttgart
1977) (henceforth Gutzwiller (1977)) 292 (English summary of German
text).
FN49. Yntema (1953) 299.
FN50. The first attempt at private international law rules is
usually attributed to Aldricus, in Bologna in the late 12th century,
who argued that the court, when faced with a dispute connected with
more than one legal system, should apply the 'better and more useful'
law: see Wolff (1950) 22; Yntema (1966) 12; on Bologna in this period
see further Kelly (1992) 120 ff. The concept that there is a 'better'
law demonstrates the natural law foundations of this approach; the
comparative nature of the test suggests a competitive improvement and
development of the law towards a universal ideal, not the existence of
diverse laws: Yntema (1953) 302.
FN51. Kennedy argues that the distinction between international
law and municipal law was itself largely unknown to 'primitive'
international law scholar****p: David Kennedy 'Primitive Legal
Scholar****p' (1986) 27 Harv Intl LJ 1 (henceforth Kennedy (1986)).
FN52. Phillipson (1911) suggests that these two types of law can
also be identified in ancient Greek (at 200) and Roman (at 284-5,
295-6) law, and thus that the statutists were merely drawing on and
expanding ancient approaches.
FN53. This may be seen, for example, in the development of
feudalism, which was
a combination of personal and territorial rights and duties--
typically the grant of land use rights in exchange for goods or
personal services (eg, farming) or an oath of personal loyalty
(usually for purposes of military service): see Yntema (1953) 302-3;
Bar (1892) 22; Kelly (1992) 97; Paul (1991) 12 ff; Lipstein (1972) 109
ff; Nussbaum (1954) 22-3.
FN54. The statutist approach is most closely associated with the
natural law theorist, Bartolus: see Wolff (1950) 23-5; Nicholas (1975)
47; Yntema (1966) 13 ff. The fame of Bartolus, and incidentally the
continued dependence on Roman law (even private international law
principles were, dubiously, 'derived' from Roman law), was expressed
in the slogan 'Nemo romanista nisi bartolista' ('If you're not a
follower of Bartolus, you're not a scholar of Roman law')--Kelly
(1992) 122. Bartolus is, however, only the most prominent figure of a
varied and complex tradition: see Juenger (2001a) 10; R de Nova
'Historical and Comparative Introduction to Conflict of Laws' (1966)
118-III Recueil des Cours 435 (henceforth de Nova (1966)) at 441 ff;
Yntema (1953) 304; Wolff (1950) 29; Westlake (1858) p 130; Westlake
(1880) 9; Lipstein (1972) 110 ff; Nussbaum (1954) 41; E Lorenzen
Selected Articles on the Conflict of Laws (Yale University Press New
Haven Conn 1947) (henceforth Lorenzen (1947)) 182 ff. Juenger suggests
that the tradition included more recognizably 'modern' rules,
including both multilateral choice of law rules and choice of law
rules
selecting laws based on the location of events (not statutory
interpretation).
FN55. De Nova (1966) 442 ff.
FN56. Juenger (2001a) 13; Westlake (1858) 124.
FN57. Wolff (1950) 25; Yntema (1966) 15; Nussbaum (1954) 42. Note
the characterization of this as a typical phase in the decline of a
legal distinction in Duncan Kennedy 'The Stages of Decline of the
Public/Private Distinction' (1982) 130 U Pa L Rev 1349 at 1351.
FN58. Bar (1892) argues at 33 that the statutist method fails
because there is 'no real substantial ground of classification to take
up'. Bartolus himself (see n 54 above) infamously struggled to
categorize the English rule of primogeniture, according to which all
property was inherited by the first born son (see Gutzwiller (1977)
294), and was criticized for his attention to the form of wording used
in the expression of the rule: see Juenger (2001a) 11; Wolff (1950)
25; Bar (1892) 28; d'Oliveira (2002) 114. A later statutist, De
Coquille (see Juenger (2001a) 15-16), argued for a more teleological
interpretive methodology, based on the presumed intention of the
legislator, perhaps anticipating contem****ary American policy analysis
approaches: see B
Currie Selected Essays on the Conflict of Laws (Duke University
Press Durham NC 1963); Che****re and North (1999) 25 ff. We should note
that Bartolus's resolution of this problem was also partly sup****ted
by the argument that the English law was 'odious' (and not
'favourable'). This may be seen as an echo of the 'better law'
approach developed originally by Aldricus, see n 50 above, and more
recently advocated in the United States, or even a very early
expression of the idea that laws might be excluded because of 'public
policy': Juenger (2001a) 12; see V.B below. The focus on statutory
policy by De Coquille is probably broadly a contributor to this trend
as well. Bar (1892) 31 points out that what is favourable for one
party is clearly odious for the other, which perhaps suggests that
'odious' and 'favourable' were intended to carry an objective, natural
law meaning; see also Yntema (1966) 14; Lipstein (1972) 119.
FN59. Kelly (1992) 200, 205 ff; de Nova (1966) 447 ff.
FN60. Far from being a coincidence, this is a key theme in the
history of private international law--see, eg Yntema (1953) 299; Wolff
(1950) 20; Juenger (2001a) 13.
FN61. Bar (1892) 34; Westlake (1880) 16 ff; Yntema (1966) 16;
Wolff (1950) 26, 29.
FN62. Westlake (1858) 123 suggests that this argument relied on
the separation of human (customary) law from Roman law, with only the
former subject to the intention of the parties. Du Moulin did not just
recognize actual party intentions, for example, expressed through an
agreement, but appeared to admit fictional tacit agreements (what we
would call an imputed agreement). This is, of course, actually an
objective test, focusing on the factual cir***stances, and not a
subjective analysis of the intentions of the parties at all. A focus
on the facts and away from the interpretation of law is encouraged
more generally by the emphasis on party intentions, and in this
innovation Du Moulin's approach very much laid the foundations for a
modern proper law approach: see Juenger (2001a) 14; Yntema (1953)
304-5; IV.B below.
FN63. Although it continued to be influential, even until the
early 19th century: see S Livermore, Dissertations on the Questions
Which Arise from the Contrarity of the Positive Laws of Different
States and Nations (B Levy New Orleans 1828); Juenger (2001a) 26;
Baker (1993) 466 ff; Paul (1991) 20-1.
FN64. Bar (1892) 29; Shaw (2003) 21. 'Territorial sovereignty'
received its first systematic analysis by Bodin in late 16th-century
France: |
