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The Private History of International Law

Published online by Cambridge University Press:  17 January 2008

Alex Mills
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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.1 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.2 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.

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Articles
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International & Comparative Law Quarterly , Volume 55 , Issue 1 , January 2006 , pp. 1 - 50
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Copyright © British Institute of International and Comparative Law 2006

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References

1 Shaw, MInternational Law (5th ednCUP Cambridge 2003) (henceforth, Shaw (2003)) 42–7; A Cassese International Law (OUP Oxford 2001) (henceforth, Cassese (2001)) 11–12.CrossRefGoogle Scholar

2 Thus, private international law is a ‘branch of English law’ in Collins, L (ed) ‘Dicey and Morris on The Conflict of Laws’ (13th ednSweet & Maxwell London 2000) (henceforth Dicey and Morris (2000)) 3;Google Scholar‘the rules of private international law are part of the internal law of the State concerned’ in Oppenheim's International Law (9th ednLongman Harlow 1992), 6;Google Scholar‘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;Google Scholar‘Principles and rules of the conflict of laws are not international, they are essentially national in character’ in Castel, JGCanadian Conflict of Laws (3rd ednButterworths (Canada) Toronto 1994) 3Google Scholar‘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 Verzijl, JInternational 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).Google Scholar

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5 ‘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’—Marks, SThe Riddle of All Constitutions (OUP Oxford 2000) 121.Google Scholar

6 Dicey, and Morris, (2000) 3;Google Scholarsee similarly North, P (ed) Cheshire and North's Private International Law (13th ednButterworths London 1999) (henceforth Cheshire and North (1999)) 3;Google ScholarCollier, JGConflict of Laws (3rd ednCUP 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’CrossRefGoogle ScholarShaw, (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’.Google Scholar

7 Blagojevic, B ‘Théories des Statuts à la lumière de l'histoire générale de l'évolution de la société’, in De Conflictu Legum, Essays Presented to RD Kollewijn and J Offerhaus (AW Sijthoff Leyden (special issue of Netherlands International Law Review 1962)—Google Scholar‘In every study of the history of private international law … it is necessary to clarify each phenomenon in the light of the conditions and circumstances of the place and time where and how these phenomena manifested themselves’ (cited and translated in d'Oliveira, H ‘The EU and a Metamorphosis of Private International Law’ in Fawcett, J (ed) Reform and Development of Private International Law (OUP Oxford 2002) (henceforth d'Oliveira (2002)) at 118.Google Scholar

8 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.

9 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 für Konrad Zweigert (Mohr Tübingen 1981) (henceforth Graveson (1981)) 96ff, who also considers the origins of private international law both within and outside the European tradition, particularly in Africa). Contemporary 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’.

10 Yntema, H ‘The Historic Bases of Private International Law’ (1953) 2 Am J Comp L 297 (henceforth, Yntema (1953)) at 317.Google Scholar

11 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).Google ScholarNote also the ancient ‘conflict of laws’ rules identified by Vinogradoff, P in ‘Historical Types of International Law’ in Collected Papers (Clarendon Press Oxford 1928) vol II 248, at 262 ff; see also Graveson (1981) 100.Google Scholar

12 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.

13 Neff, S ‘A Short History of International Law’ in Evans, MInternational Law (OUP Oxford 2003) (henceforth Neff (2003)) at 33;Google ScholarShaw, (2003) 17;Google ScholarKelly, JMA 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.Google Scholar

14 Nicholas, BAn Introduction to Roman Law (Clarendon Press Oxford 1975) (henceforth Nicholas (1975)) 57–8.Google Scholar

15 Wolff, MPrivate International Law (2nd ednClarendon Press Oxford) (1950) (henceforth Wolff (1950)) 20;Google ScholarYntema, (1953) 300; but see Kelly (1992) 77 who argues that Roman law contained the foundations of international law concerning the laws of war;Google Scholarsee also Wheaton, HElements of Interational Law (B Fellowes London 1836) (henceforth, Wheaton (1836)) 6 ff.Google Scholar

16 Juenger, F ‘A Historical Overview’, in Selected Essays on the Conflict of Laws (Transnational Publishers Ardsley NY 2001) (henceforth, Juenger (2001a) 4–5;Google ScholarWolff, (1950) 20;Google ScholarBar, L von, ‘The Theory and Practice of Private International Law’ (2nd ednW Green & Sons Edinburgh; trans by Gillespie, GR 1892) (henceforth Bar (1892)) 11 ff.Google Scholar

17 See Phillipson (1911) 301 for an alternative view. Other authors have stressed that it is important not to underestimate the extent of the development of international law in the ancient world—see, eg, Bederman, DInternational Law in Antiquity (CUP Cambridge 2001);CrossRefGoogle ScholarVerosta, SInternational Law in Europe and Western Asia between 100 and 650 AD (1964) 113–III Recueil des Cours 485;Google ScholarNussbaum, A ‘The Significance of Roman Law in the History of International Law’ (1952) 100 U Pa L Rev 678.CrossRefGoogle Scholar

18 Kelly, (1992) 61 ff.Google Scholar

19 Shaw, (2003) 16 ff;Google ScholarMaine, HSAncient Law’(J Murray London 1861; 1930 edn with notes by F Pollock) (henceforth Maine (1861)) ch 3;Google ScholarWalker, TAA History of the Law of Nations (CUP Cambridge 1899) 45Google ScholarWheaton, HHistory 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;Google ScholarVinogradoff, P ‘Historical Types of International Law’ in Collected Papers (Clarendon Press Oxford 1928) vol II 248, at 269 ff.Google Scholar

20 See von Mehren, AT ‘American Conflicts Law at the Dawn of the 21st Century’ (2001) 37 Willamette L Rev 133;Google Scholarvon Mehren, AT ‘Special Substantive Rules for MultiState Problems: Their Role and Significance in Contemporary Choice-of-Law Methodology’ (1974) 88 Harv L Rev 298;CrossRefGoogle ScholarJuenger, FKChoice 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.Google Scholar

21 Kelly, (1992) 62–3; Nussbaum (1954) 13 ff.Google Scholar

22 Nicholas, (1975) 58.Google Scholar

23 Hall, S ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’ (2001) 12 EJIL 269 (henceforth Hall (2001)) 293 ff;CrossRefGoogle ScholarRommen, HThe 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.Google Scholar

24 Gaius, ‘Institutes’, cited in Nicholas (1975) 54 ff. See also Juenger (2001a) 6; Neff (2003) 33–4.Google Scholar

25 Rommen, (1936) 25 ff; Wheaton (1845) 29.Google Scholar

26 Nussbaum, (1954) 14.Google Scholar

27 The ambiguity between these two senses of ‘ius gentium’ has been important 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).

28 It has been suggested that these predated the Roman world— see, eg S Kassan ‘Extraterritorial Jurisdiction in the Ancient World’ (1935) 29 AJIL 237.

29 Wolff, (1950) 21;Google ScholarSavigny, (1880) 58 ff;Google ScholarLipstein, K ‘The General Principles of Private International Law’ (1972) 135-I Recueil des Cours 97 (henceforth Lipstein (1972)) 107 ff; Nussbaum (1954) 41.Google Scholar

30 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 temporary ‘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.

31 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.

32 Wolff, (1950) 22.Google Scholar

33 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: Cassese (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.

34 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.

35 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.

36 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.Google Scholar

37 Rommen, (1936) 53ff.Google Scholar

38 Aquinas, ‘Summa Theologica’, Ia 2ae 91 2.

39 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.

40 Shaw, (2003) 21;Google ScholarHall, (2001) 294.Google Scholar

41 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 (Lakimieslüton Kustannus Helsinki 1989) 41.

42 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.

43 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;Google ScholarBaker, JH ‘The Law Merchant and the Common Law before 1700’ (1979) 38 Cambridge LJ295 (henceforth Baker (1979));Google ScholarJuenger, F ‘The lex mercatoria and Private International Law’ (2000) 5 Uniform LR 171.CrossRefGoogle Scholar

44 Nussbaum, (1954) 41.Google Scholar

45 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;Google ScholarSuarez, FOn Laws and God the Lawgiver (Clarendon Press Oxford (trans by Williams, GL 1944) 1612) Bk 2;Google ScholarBull, H ‘Natural Law and International Relations’ (1979) 157 in Hedley Bull on International Society (Macmillan Basingstoke 2000) (henceforth Bull (1979)) at 160 ff.Google Scholar

46 Yntema, (1966) 10–11.Google Scholar

47 See III.C below.

48 Or perhaps would only hear disputes to which it could apply its own law.

See Wolff, (1950) 22;Google Scholar

Gutzwiller, MGeschichte des Internationalprivatrechts (Helbing & Lichtenhahn Basel; Stuttgart 1977) (henceforth Gutzwiller (1977)) 292 (English summary of German text).Google Scholar

49 Yntema, (1953) 299.Google Scholar

50 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.

51 Kennedy argues that the distinction between international law and municipal law was itself largely unknown to ‘primitive’ international law scholarship:

Kennedy, David ‘Primitive Legal Scholarship’ (1986) 27 Harv Intl LJ 1 (henceforth Kennedy (1986)).Google Scholar

52 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.

53 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.

54 The statutist approach is most closely associated with the natural law theorist, Bartolus: see Wolff (1950) 23–5; Nicholas, (1975) 47;Google ScholarYntema, (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;Google Scholarde Nova, R ‘Historical and Comparative Introduction to Conflict of Laws’ (1966) 118–III Recueil des Cours 435 (henceforth de Nova (1966)) at 441 ff;Google ScholarYntema, (1953) 304;Google ScholarWolff, (1950) 29;Google ScholarWestlake, (1858) p 130;Google ScholarWestlake, (1880) 9;Google ScholarLipstein, (1972) 110 ff;Google ScholarNussbaum, (1954) 41;Google ScholarLorenzen, ESelected 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).Google Scholar

55 De Nova, (1966) 442 ff.Google Scholar

56 Juenger, (2001a) 13;Google ScholarWestlake, (1858) 124.Google Scholar

57 Wolff, (1950) 25;Google ScholarYntema, (1966) 15;Google ScholarNussbaum, (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.Google Scholar

58 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 contemporary American policy analysis approaches: see B Currie Selected Essays on the Conflict of Laws (Duke University Press Durham NC 1963); Cheshire and North (1999) 25 ff. We should note that Bartolus's resolution of this problem was also partly supported 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.

59 Kelly, (1992) 200, 205 ff;Google Scholarde Nova, (1966) 447 ff.Google Scholar

60 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.

61 Bar, (1892) 34;Google ScholarWestlake, (1880) 16 ff;Google ScholarYntema, (1966) 16;Google ScholarWolff, (1950) 26, 29.Google Scholar

62 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 circumstances, 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.

63 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.

64 Bar, (1892) 29;Google ScholarShaw, (2003) 21. ‘Territorial sovereignty’ received its first systematic analysis by Bodin in late 16th-century France: see Yntema (1953) 305;Google ScholarYntema, (1966) 18;Google ScholarKelly, (1992) 158 ff, 175. Nussbaum (1954) 77 points out that Bodin's theory of absolute sovereignty may be contrasted with the reality of fractured power within the French kingdom, suggesting his theory had a political agenda of centralization in support of the monarchy.Google Scholar

65 Neff, (2003) 38. The personal element of feudal relations (see n 53 above) was reduced as they evolved into merely a system of land title: see Yntema (1953) 305;Google ScholarWestlake, (1880) 12.Google Scholar

66 Bar (1892) 35; Westlake (1880) 17; Yntema (1953) 306; Yntema (1966) 15–6; Lorenzen (1947) 137 ff; Lipstein (1972) 120–1; Nussbaum (1954) 75.

67 Wolff, (1950) 26;Google ScholarJuenger, (2001a) 14.Google Scholar

68 Bar, (1892) 35;Google ScholarGutzwiller, (1977) 296.Google Scholar

69 In reflecting this drift, D'Argentré is himself also manifesting the trend away from universal, natural law solutions towards a ‘positivist’ dependence on the behaviour of States—see III.A below.

70 An English jury traditionally consisted of men from near the location of the disputed act or thing, who would therefore be expected to serve both as adjudicators and as witnesses (of the event or the character of the disputants): see for example Baker (1993) 463; Cheshire and North (1999) 16 ff. The English court had no power to order foreigners to serve in juries, which initially rendered the courts powerless to deal with disputes concerning foreign property or events.

71 See Maine (1861) ch 2. For example, in a case involving property in Brussels, a claimant might plead (and the defendant would accept) that Brussels was in London, in order that a jury could be empanelled: see Juenger (2001a) 19; Baker (1979) 303. A typical example is Mostyn v Fabrigas (1774) 98 Eng Rep 1021. This might also be viewed as a method of accommodation of party autonomy. The need for this approach declined with changes to the role of juries and the rules regarding their formation: see, eg Cheshire and North (1999) 17.

72 See II.A.2 above.

73 Baker, (1993) 463 ff;Google ScholarCheshire, and North, (1999) 16;Google ScholarLipstein, (1972) 126 ff.Google Scholar

74 Nussbaum, (1954) 74.Google Scholar

75 See II.B.3 above.

76 Juenger, (2001a) 19 ff;Google ScholarShaw, (2003) 19;Google ScholarPaul, (1991) 18;Google ScholarNussbaum, (1954) 28;Google ScholarBaker, (1979).Google Scholar

77 A particular influence is usually attributed to Lord Mansfield, for example, in Robinson v Bland (1760) 1 W Bl 234; 96 Eng Rep 129. See Davies, (1937);Google ScholarAnton, AE ‘The Introduction into English Practice of Continental Theories on the Conflict of Laws’ (1956) 5 ICLQ 534;CrossRefGoogle ScholarJuenger, (2001a) 22–3;Google ScholarWestlake, (1880) 8;Google ScholarPaul, (1991) 17 ff;Google ScholarPaul, J ‘The Isolation of Private International Law’ (1988) 7 Wis Intl L J 149 (henceforth Paul (1988)) at 159;Google ScholarSack, AN, ‘Conflicts of Laws in the History of English Law’ in Reppy, A (ed) Law: A Century of Progress vol 3 (New York University Press New York 1937). Lorenzen (1947) 155 suggests a philosophical affiliation between English feudalism and the Dutch approach; see also Lipstein (1972) 126 ff.Google Scholar

78 See n 35 above.

79 Rommen, (1936) 61;Google ScholarWardhaugh, B ‘From Natural Law to Legal Realism: Legal Philosophy, Legal Theory, and the Development of American Conflict of Laws since 1830’ (1989) 41 Maine Law Rev 307 (henceforth Wardhaugh (1989)) at 326 ff.Google Scholar

80 Note that the term ‘positivism’ carries a technical meaning in international law—see III.C below. The term was coined by Comte in the 19th century: see A Comte ‘Cours de philosophic positive (Course in Positive Philosophy)’ (1830–42); Kelly, (1992) 331.Google Scholar

81 Although of course it carries theoretical presumptions and implications, in particular concerning epistemology and ontology—see n 83 below.

82 Neff, (2003) 40–1;Google Scholarsee also Kelly, (1992) 223 ff.Google Scholar

83 Shaw, (2003) 25;Google ScholarKelly, (1992) 271. This was itself borrowed from the Greek Skeptics: see Rommen (1936) 20.Google Scholar

84 Neff, (2003) 41;Google Scholarsee Lorenzen, (1947) 1. The analogy is of course not trivial—the high point of positivism, the application of the natural sciences to the study of human society, followed the identification of man as animal implicit in the theory of evolution in the late 19th century.Google Scholar

85 See II.C above.

96 See above n 64.

87 Kelly, (1992) 200; note further the role of protestant Holland in developing the theory of sovereignty—see III.C (Grotius) and III.D (P Voet, J Voet, and U Huber) below; Paul (1991) 16.Google Scholar

88 Machievelli, The Prince (OUP Oxford (trans by Bondanella, P and Musa, M 1984) 1513);Google ScholarHobbes, Leviathon (Andrew Crooke London 1651);Google Scholarsee Kelly, (1992) 172;Google ScholarNussbaum, (1954) 76, 144 ff. Hobbes's emphasis on sovereign will (and not on reason) is linked to the empirical scepticism of Locke—see Rommen (1936) 82 ff and III.A above. Note however the alternative interpretation of Hobbes, under which the sovereign is subject to substantial natural law rules, offered in N Malcolm Aspects of Hobbes (OUP Oxford 2002) (henceforth Malcolm (2002)) ch 13, and similarly C Covell Hobbes, Realism and the Tradition of International Law (Palgrave Macmillan Basingstoke 2004).Google Scholar

89 See, eg, de Vattel, EThe Law of Nations, or the Principles of National Law applied to the Conduct and to the Affairs of Nations and Sovereigns (1758, trans. Fenwick, CG (Carnegie Institution of Washington Washington 1916) (henceforth, Vattel (1758)) 137: ‘the Sovereign represents the entire Nation of which he is head, and unites in his person the attributes which belong to the Nation’. Note also Louis IV's famous aphorism ‘L'État c'est moi’ (see Kelly (1992) 254).Google Scholar

90 Neff, (2003) 38;Google ScholarKelly, (1992) 145;Google ScholarKennedy, (1986) 94;Google Scholarsee Nussbaum, (1954) 94 ff on the development of this idea by Gentili 112 on its further adoption by Grotius;Google Scholarsee also Wheaton, (1845) 50 ff; Wheaton (1836) 16 ff.Google Scholar

91 Rommen, (1936) 59 ff.Google Scholar

92 See VI.A below; note the discussion of the history of the idea of ‘autonomy’ in private international law in Yntema, H ‘Contract and Conflict of Laws: “Autonomy” in Choice of Law in the United States’ (1955) 1 New York Law Forum 46; see n 139 below.Google Scholar

93 Neff, (2003) 44;Google ScholarKelly, (1992) 345 ff;Google ScholarNussbaum, (1954) 196 ff;Google ScholarHershey, A ‘History of International Law Since the Peace of Westphalia’ (1912) 6 AJIL 30 (henceforth, Hershey (1912)) at 55 ff.CrossRefGoogle Scholar

94 A system which was arguably ineffective not because of a lack of willingness on the part of States to exercise their will, but because of the diversity of State ‘wills’, reflecting differing degrees of national resistance to the forces of early 19th century liberalization—Neff (2003) 48–9; Cassese (2001) 25 ff; Yntema (1953) 309; Nussbaum (1954) 186 ff;

Koskenniemi, MThe Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP Cambridge 2002) (henceforth Koskenniemi (2002)); Hershey (1912) 46 ff.Google Scholar

95 This is not to deny that a positivist approach may tend to construct a particular type of theory, because it inherently favours the recognition of certain types of constitutive elements (for example treaties over custom).

96 Hall, (2001) at 281 argues that the fact that ‘States continued to regard international law as real law’ means that ‘legal positivism involved, despite its scientific aspirations, an unscientific attempt to make the facts fit a preconceived theory’.Google Scholar

97 See Kennedy, David ‘International Law and the 19th Century: History of an Illusion’ (1996) 65 Nordic J of Intl Law 385 (henceforth Kennedy (1996)) 398.CrossRefGoogle Scholar

98 See generally Yntema, (1953) 305;Google ScholarYntema, (1966) 16 ff;Google ScholarShaw, (2003) 23–4;Google ScholarNussbaum, (1954) 102 ff;Google ScholarWheaton, (1845) 54 ff;Google ScholarEhrlich, L ‘The Development of International Law as a Science’ (1962) 105-I Recueil des Cours 171 (henceforth Ehrlich (1962)).Google Scholar

99 The focus below is on the famous and influential ‘De Iure Belli ac Pacis’, or ‘Of the Law of War and Peace’ (1625). However it is useful to note the contrast with Grotius's early work, ‘De Jure Praedae’, or ‘Of the Law of Prizes’, written about 1604 and unpublished during his lifetime (published 1950, trans by G Williams ). This early work adopted a more systematic, natural law approach to the analysis of international law, in which (see, eg, 26) the positive law of nations was clearly secondary to natural law.

100 See Grotius Of the Law of War and Peace (1625, trans. Kelsey, F (Carnegie Institution of Washington Washington 1925) (henceforth, Grotius (1625));Google ScholarNeff, (2003) 37;Google ScholarHershey, (1912) 31 ff;Google ScholarHochstrasser, TJNatural Law Theories in the Early Enlightenment (CUP Cambridge 2000) 53 (henceforth Hochstrasser (2000)) 4, 9;CrossRefGoogle ScholarKelly, (1992) 225 ff. Note the argument by Kennedy (1986) that the distinction between natural law and positivist approaches only properly belongs to the later ‘traditional’ period of international law. Grotius acknowledged the influence of Gentili—see Shaw (2003) 23; Kelly (1992) 201 ff; Nussbaum (1954) 94 ff; Wheaton (1845) 57; Wheaton (1836) 19 ff. The separation of the ‘ius gentium’ and natural law was perhaps also anticipated by F Suarez On Laws and God the Lawgiver (Clarendon Press Oxford (trans by GL Williams 1944) 1612); Hershey (1912) 67; but see Nussbaum (1954) 86; Kennedy (1986) 42 ff on the ambiguity of ‘ius gentium’ in Suarez’ writings (also discussed in n 27 above).Google Scholar

101 Grotius (1625) Bk 1 Ch I Pt X.1

102 Grotius (1625) Prolegomena, 26: ‘History in relation to our subject is useful in two ways: it supplies both illustrations and judgements.… And judgements are not to be slighted … [for] by no other means, in fact, is it possible to establish the law of nations.’ Note the parallel between ‘induction’ and the idea of an ‘ascending’ pattern of justification in Koskenniemi (1989) 41.

103 Grotius (1625) Prolegomena para 17, 40; Kennedy (1986) 82; Westlake (1880) 18; Nussbaum (1954) 108–9; Wheaton (1836) 35 ff.

104 Grotius (1625) Prolegomena para 24; see also Yntema (1966) 20; Wheaton (1845) 91 ff.

105 Neff, (2003) 37–8; see further Hochstrasser (2000) 2; Kelly (1992) 226; Kennedy (1986). Note (again) the importance of the role of ‘will’ in Grotius—the antithesis of the natural law identification of law with the triumph of reason over will—see Rommen (1936) 41.Google Scholar

106 See II.A.2 above; Hershey (1912) 32; Yntema (1966) 19. Wheaton (1845) 32 ff provides further analysis. Note the dedication of Grotius (1625) to Louis XIII of France—see Nussbaum (1954) 105.

107 Grotius (1625) Book 1 Chapter I Part XIV; see further Wheaton (1836) preface and 50 ff. Note the argument in Kelly (1992) 60, 111 that this reflects an ambiguity in the Roman concept of natural law, developed further in his discussion of Vitoria (see IV.A below) at 200 ff.

108 Grotius (1625) I Prolegomena 17;

see Bull, H ‘The Grotian Conception of Internatioanal Society’ (1966) 95 in Hedley Bull on International Society (Macmillan Basingstoke 2000) (henceforth Bull (1966a)).Google Scholar

109 See Kelly, (1992) 61.Google Scholar

110 Neff, (2003) 38; Cassese (2001) 19 ff; Nussbaum (1954) 115; Hershey (1912); Wheaton (1845) 69 ff.Google Scholar

111 Neff, (2003) 42; contrast n 51 above. This is an idea still expressed in Art 2(7) of the United Nations Charter.Google Scholar

112 Hall, (2001) 274; Yntema (1966) 30; Bull (1966a) 111 ff; Hershey (1912) 33 ff.Google Scholar

113 See III.B above; Kelly, (1992) 214; see discussion in Malcolm (2002) ch 13;Google ScholarBull, H ‘Society and Anarchy in International Relations’ (1966) 77 in Hedley Bull on International Society (Macmillan Basingstoke 2000) 84 ff (henceforth, Bull (1966b));Google ScholarBull, H ‘Hobbes and the International Anarchy’ (1981) 188 in Hedley Bull on International Society (Macmillan Basingstoke 2000).Google Scholar

114 Pufendorf, S ‘On the Law of Nature and of Nations’ (Clarendon Press Oxford(trans by Oldfather, WA 1934) 1672); Shaw (2003) 24; Hochstrasser (2000) 40 ff, 90.Google Scholar

115 Nussbaum, (1954) 147 ff; Wheaton (1845) 88 ff. Wheaton suggests an even stronger natural law affiliation, arguing at 89 that Pufendorf ‘professes to follow the method of the geometers’. On the other hand, (at 93) he recognizes a more positivist method behind Pufendorf's definition of law as necessarily ‘emanating from a superior’.Google Scholar

116 Kelly, (1992) 224; Nussbaum (1954) 146–7.Google Scholar

117 See Wheaton, (1845) 100.Google Scholar

118 See IV.A below.

119 Vattel (1758); Shaw (2003) 25–6; Hochstrasser (2000) 177 ff; Nussbaum (1954) 156 ff; Hershey (1912) 38; Wheaton (1845) 182 ff; Ehrlich (1962) 235 ff.Google Scholar

120 Hochstrasser, (2000) 179; Bull (1966a); Wheaton (1845) 186 ff.Google Scholar

121 Neff, (2003) 42; Vattel (1758) 137: ‘nature has established a perfect equality of rights among independent Nations. In consequence, no one of them may justly claim to be superior to the others. All the attributes which one possesses in virtue of its freedom and independence are possessed equally by the others.’Google Scholar

122 Vattel, (1758) 8. This account borrowed from the way Hobbes had characterized life for individuals in the pre-social State of nature—'solitary, poor, nasty, brutish and short’—where what was moral was merely the application of reason in pursuit of self-preservation: Hobbes, ‘Leviathan’ I.13; see Kelly (1992) 212 ff; note Pufendorf's comments in Hochstrasser (2000) 57, 98, contrasting Grotius’ account of the fundamental sociability of humans with Hobbes voluntarist account. See also Hochstrasser (2000) 177; note that Hobbes's account borrows from ancient Greek sophists—see Kelly (1992) 15. But note the alternative, natural law, account of Hobbes's theory of international relations offered in Malcolm (2002) ch 13.Google Scholar

123 Vattel, (1758) 7.Google Scholar

124 Cassese, (2001) 10 ff.Google Scholar

125 See, eg Vattel, (1758) 138: ‘the public ownership possessed by the Nation is full and absolute, since there is no authority on earth which can impose limitations upon it.’ Note that despite Vattel's voluntary idea of international law, he does maintain, relying on a strongly territorial theory of sovereignty, a mandatory theory of the enforcement of judgments, arguing that ‘It is the part of the Nation … to enforce justice throughout the territory subject to it, to take cognizance of crimes committed therein, and of the differences arising between the citizens.… when once a case in which foreigners are involved has been decided in due form, the sovereign of the litigants may not review the decision.’Google Scholar

126 Neff, (2003) 38–42; Cassese (2001) 5 ff.Google Scholar

127 Bentham, JIntroduction to the Priciples of Morals and Legislation (Clarendon Press Oxford 1996 1780) ch 17; Nussbaum (1954) 136; Wheaton (1845) 328 ff; Wheaton (1836) 54 ff;Google ScholarJanis, MWThe American Tradition of International Law (OUP Oxford 2004) (henceforth, Janis (2004)) 1 ff.Google Scholar

128 Vattel, (1758) 8.Google ScholarSee also Wolff, CThe Law of Nations According to a Scientific Method (1749/1764, trans. Drake, JH (Clarendon Press Oxford 1934) (henceforth Wolff (1749)) prolegomena, 18. For a modern discussion see for example Hall (2001) 285 ff; O Elias ‘The nature of the subjective element in customary international law’ (1995) 44 ICLQ 501; IM Lobo De Souza ‘The role of State consent in the customary process’ (1995) 44 ICLQ 521; A Pellet ‘The Normative Dilemma: Will and Consent in International Law-Making’ (1992) 12 Aust Yb IL 22 at 36 ff.Google Scholar

129 Following Bentham's advocacy of an ‘expository’ study of law: see Bentham, A Fragment on Government (CUP Cambridge 1988 1776)—see Kelly (1992) 287 ff. Note also Bentham's famous rejection of natural law: ‘ “Natural rights” is simple nonsense; “natural and imprescriptible rights”, rhetorical nonsense—nonsense upon stilts’—‘Anarchical Fallacies’ (1816) Art II (cited in Kelly (1992) 276).CrossRefGoogle Scholar

130 Neff (2003) 43–4; Shaw (2003) 28–9; Nussbaum (1954) 135, 165 ff (discussing the emphasis on statistical data and State practice in the works of positivist international law theorists; see also Hershey (1912) 35 ff), 232 ff, 243 ff; Cassese (2001) 12–13 (noting the centrality of ideas of ‘effectiveness’ in international law, and arguing (12) that international law ‘takes account of existing power relationships and endeavours to translate them into legal rules’). A particularly influential example was Wheaton (1836)—see discussion in Janis (2004) 44 ff.

131 See discussion in ‘Academic Workshop: Should we continue to distinguish betweeen public and private international law’ (1985) 79 Am Soc IL Proc 352. For a critical discussion of the (often neglected) history of international law in the late 19th century (real or constructed) see Kennedy (1996); Koskenniemi (2002).

132 See, eg Nussbaum (1954) 234.

133 Hochstrasser (2000) 181.

134 Nussbaum (1954) 194 ff; Hershey (1912) 49 ff.

135 See generally Simpson, GGreat Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUP Cambridge 2004).CrossRefGoogle Scholar

136 Yntema (1966) 20. This is despite attempts to imply or construct rules of private international law from Grotius's writings—see Westlake (1880) 20–1.

137 See III.C above.

138 See III.D above; Bentham, Introduction to the Priciples of Morals and Legislation (Clarendon Press Oxford 1996 1780) ch 17, XXV; Janis (2004) 24. See further Kennedy (1996) 409–10.Google Scholar

139 See VI.A below. In the 19th century in particular international law arguably became a tool for advocacy of national politics, in particular for the growing force of economic and political liberalism, expressed through formal or institutional claims: Kelly (1992) 305 ff; B Kingsbury ‘Legal Positivism As Normative Politics: International Society, Balance Of Power And Lassa Oppenheim's Positive International Law’ (2002) 13 EJIL 401 (henceforth Kingsbury (2002)). Thus, the main international law issues of the 19th century were not diplomatic but (very familiar) economic issues—the pushes towards global freedom of trade through tariff reductions, the ‘rationalization’ of the movement of peoples and the globalization of the international economy (through the gold standard), all in support of the penetration of European capital into the developing world: Neff (2003) 45; Nussbaum (1954) 203 ff, 210 ff.

140 See Fox, H ‘International Law and the Restraints on the Exercise of Jurisdiction by National Courts of States’ in Evans, M (ed) International Law (OUP Oxford 2003).Google Scholar

141 It is important to note that these are not ‘positivist’ (in the general sense) theories of private international law, but theories of private international law which are the consequence of the ‘positivist’ account of international law, outlined in III.C above. There would be a ‘positivist’ (in the general sense) revolution in private international law, but only in the twentieth century, most prominently in the United States: see, eg Cheshire and North (1999) 23 ff; Collier (2001) 383 ff.

142 See III.C above.

143 Yntema (1966) 17 ff; Weinstein (1990) 97 ff; Paul (1991) 15; Lorenzen (1947) 138.

144 Yntema (1953) 299 ff. Note discussion in Savigny (1880) 65.

145 Yntema (1966) 22 ff; Paul (1991) 15.

146 Yntema (1966) 23–4.

147 Bar (1892) 38; Yntema (1966) 23. On this problematic concept see further Paul (1991), who includes a particularly detailed analysis of the approach(es) to comity in the United States;

Collins, L ‘Comity in Modern Private International Law’ in Fawcett, J (ed) Reform and Development of Private International Law (OUP Oxford 2002) (henceforth Collins (2002)); Dicey and Morris (2000) 5 ff; Cheshire and North (1999) 5; Lorenzen (1947) 158 ff.Google Scholar

148 Hilton v Guyot (1895) 159 US 113 at 163–4.

149 Bar (1892) 39.

150 See VI.A below; Nussbaum (1954) 141–2; de Nova (1966) 449.

151 See generally Lipstein (1992) 121 ff; Davies (1937); Juenger (2001a); Lorenzen (1947) ch 6. A copy and translation of Huber's ‘De Conflictu Legum’ is annexed to this chapter in Lorenzen.

152 Bar (1892) 38; Westlake (1880) 22; Yntema (1966) 25 ff.

153 Wolff (1950) 27; Yntema (1953) 306.

154 These first two points are in fact no more than a re-Statement of the statutist theory in respect of those laws classified as ‘territorial’—Huber's approach is a more incremental change from the statutist theory than is often suggested.

155 See n 151 above. Note the ambiguity of Huber's ‘will so act’, which may be a description of or a constraint on State practice.

156 It might be argued that they were implied by Dutch commercial needs in particular.

157 See n 151 above; Juenger (2001a) 17. Note the correspondence of this idea with the use of ‘tacit consent’ to found international customary law as part of a positivist ‘will-based’ theory of international law—see III.C above.

158 Juenger (2001a) 16.

159 See Davies (1937) 58 ff; de Nova (1966) 449 ff.

160 See Juenger (2001a) 17–18; Wolff (1950) 28, 30, 34. In its reliance on discretionary ‘comity’ as the solution to ‘conflicts of law’, in an attempt to reconcile sovereignty with the application of foreign law by a court, the Dutch school incidentally implied a positivist methodology for the study of private international law. If foreign law is applied purely as a matter of discretion, the only possible way to study it and formulate more detailed ‘rules’ is to examine the practice of States, and generate rules by induction: see Bar (1892) 43; cf III.A n 102 above.

161 J Story Commentaries on the Conflict of Laws (Little Brown Boston Mass 1834) (henceforth Story (1834));

Nadelmann, K ‘Joseph Story's Contribution to American Conflicts Law: A Comment’ (1961) Am J Legal Hist 230; Yntema (1953) 307; Wolff (1950) 33; Bar (1892) 45; Baker (1993); Paul (1991) 21 ff; Lorenzen (1947) ch 7; Weinstein (1990) 92 ff. Note however a broader range of direct and indirect effects of Huber's work identified in Davies (1937). See also n 77 above.Google Scholar

162 Tetley describes this as Story's acceptance of the two ‘hostile’ concepts of natural law and the liberal social contract: see W Tetley ‘A Canadian Looks at American Conflict of Law Theory and Practice, Especially in Light of the American Legal and Social Systems (Corrective vs Distributive Justice)’ (1999) 38 Columbia J Transnational Law 299 at 308; see similarly Wardaugh (1989).

163 See argument in James v Allen 1 Dall 188 (Pa 1786); Millar v Hall 1 Dall 229 (Pa 1788); Camp v Lockwood 1 Dall 393 (Pa 1788);

Nadelmann, K ‘Full Faith and Credit to Judgments and Public Acts’ (1957) 56 Mich L Rev 33 at 50, 77 ff. The full text of Huber's De Conflictu Legum of 1684 was included in translation as an annex to the case of Emory v Grenough 3 Dall 369 (1797) and given almost the status of precedent:CrossRefGoogle Scholar

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164 Paul (1988) 161;

Nadelmann, K ‘Joseph Story's Contribution to American Conflicts Law: A Comment’ (1961) 5 Am J Legal Hist 230 at 241, citing Story in Harvey v Richards 1 Mason 412 at 420;CrossRefGoogle Scholar

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165 See Wardaugh (1989). Story was influenced by Pufendorf, and by the natural law philos-opher William Paley, who was himself heavily influenced by Pufendorf—see III.C above. Story's natural law philosophy is most clearly set out in his (anonymous) article entitled ‘Natural law’ in Francis Lieber's Encyclopaedia Americana (Carey, Lea & Carey Philadelphia 1836)—see Wardaugh (1989) 308 ff.

166 Janis (2004) asks (at 23–4), ‘Could it be that one reason why no [treatise on conflict of laws] existed [before Story] was that heretofore, in Blackstone's fashion, the law of nations had been comprehended in such a way as to encompass some or all of the problems Story addressed under the rubric ‘conflict of laws'?’ See III.C above,

167 The reference to ‘conflict of laws’ in the title again demonstrates the influence of Huber— although Story also invented the term ‘private international law’ in the Commentaries.

168 What was included was arguably just a restatement of Huber; see Lipstein (1972) 130 ff; Bar (1892) 46.

169 See Baker (1993) 482 ff, 490 ff.

170 Wolff (1950) 33; Bar (1892) 47; de Nova (1966) 470. This approach was particularly influential in the United States and in the United Kingdom, perhaps partly because it sits well with the pragmatic, more utilitarian conceptions of law in these States: Bar (1892) 45–6. Ironically, it may be that Story's successful application of this method actually reduced its future application, and particularly the practice of referring to foreign sources, as later authors merely cited Story's own work rather than engage in a comparative analysis.

171 Story (1834) 20; Born (1996) 547 ff; Collier (2001) 378.

172 Story (1834) 23.

173 See III.D.1 above.

174 Wardhaugh (1989) 308.

175 It is not entirely clear whether Story was committed to the idea of ‘vested rights’, at least in the sense later adopted by Dicey (see III.D.4 below), although it is arguably implicit in Huber's third rule (see III.D.1 above); Baker (1993) 503 ff. Story's approach to conflicts did emphasize his ‘conviction that individuals rather than nations or States are the primary repositories of rights’: Baker (1993) 472. Baker also argues that ‘Story cast his private international law rules as guardians of contractual entitlements and proprietary interests’ (476), and that his private international law work ‘is best characterized as a heuristic, constitutional essay on the correlative scope of private and public sovereignty’ (488).

176 Story (1834) 35; Born (1996) 549. Note the argument in Baker (1993) 459 that ‘Manipulating the concept of comity by emphasizing the fiction of willing ratification … helped Story reconcile popular sovereignty with principles of international law derived from an older, natural-law tradition’; cf IV.A below.

177 See Wardhaugh (1989) 321 ff.

178 Westlake (1880) 2.

179 ibid vi.

180 ibid 16.

181 Westlake (1858) iii; id (1880) 4ff.

182 Dicey, AV ‘His Book and His Character’ in Memories of John Westlake (London 1914) (henceforth, Dicey (1914)) 26; de Nova (1966) 471; see IV.B below.Google Scholar

183 Note the change in title from Westlake (1858) (‘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’) to Westlake (1880) (‘A Treatise on Private International Law with principal reference to its practice in England’). With the development of English private international law between these and subsequent editions, Westlake increasingly focused on English cases to the exclusion of foreign judgments and jurists.

184 Westlake (1858) iv; note also that this anticipates Kahn's arguments in VI.A below. An additional argument, also discussed in VI.A below, points to the increasing ‘completeness’ of the English legal system, removing the need for references to foreign legal jurisprudence in the development of the English law.

185 Westlake (1858) 149.

186 Following Austin and Bentham—see Hall (2001) 279 ff; Westlake (1858) 130, 132; Westlake (1880) 2; Kelly (1992) 313 ff. But see also Wardhaugh (1989) 330 ff, who views Austin's methodology as a continuation of the ‘geometric’ or deductive method favoured by natural law theorists.

187 Westlake (1858) 128. Note however that Westlake does not appear to apply this characterization to the international sphere in his later writings on international law, arguing that international law only required a ‘society of States’—Westlake, ‘Chapters on the Principles of International Law’ (1894); see Koskenniemi (2002) 48 ff.

188 Westlake (1858) 131. It should be pointed out that this argument seems to beg the question, unless by power Westlake means material power and not legal authority, in which case it becomes a legitimisation of force. Note that it echoes John Voet, and also Cocceji's argument in the 17th century—see Gutzwiller (1977) 301.

189 Echoing the idea of ‘vested rights’ implicit in Huber's third rule and arguably in Story and Dicey (see III.D.4 below).

190 Westlake (1858) 154, emphasis in original.

191 Dicey, AVDigest of the Law of England with Reference to the Conflict of Laws (Stevens and Sons London 1896) (henceforth, Dicey (1896)); Dicey (1914); Wolff (1950) 45; Lorenzen (1947) 1 ff;Google ScholarMorse, C ‘Making English Private International Law’ in Fawcett, J (ed) Reform and Development of Private International Law (OUP Oxford 2002) (henceforth Morse (2002)) at 273; Davies (1937) 59; Wardhaugh (1989) 324 ff; de Nova (1966) 471.Google Scholar

192 Dicey, AV (1896); still reflected in Dicey and Morris (2000) 4; see VI.A below.Google Scholar

193 Dicey, AVThe Law of Domicile as a Branch of the Law of England (Stevens and Sons London 1879), Introduction iv. v (see Bar (1892) 3).Google Scholar

194 Perhaps drawing on the late 19th-century codification trend: see Morse (2002) 278 ff; V.B below.

195 Dicey (1896) 10.

196 See III.D.1, III.D.2 above—although note that Dicey's use of ‘vested rights’arguably differs from that of Story. On ‘vested rights' see Born (1996) 616 ff; Cheshire and North (1999) 20–2; Yntema (1953) 308; Paul (1991) 23.

197 Fentiman, R ‘Legal Reasoning in the Conflict of Laws: An Essay in Law and Practice’ in Krawietz, W et al. (eds) Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift for Robert S Summers (Duncker & Humboldt Berlin 1994) 459; Morse (2002) 282 ff.Google Scholar

198 Neff (2003) 46; Hall (2001). For a more critical view of this ‘conventional story’ see Kennedy (1996); Koskenniemi (2002). Koskenniemi (1989) 41 argues that the structure of international legal argument may be viewed as a fundamentally indeterminate contest between ascending and descending modes of argument—these may be compared with positivist and natural law approaches (see n 41 and n 102 above).

199 Hochstrasser (2000), at 4, points out that ‘Natural law theories before the 17th century were dominanted by a principle of theistic origins—that God was the source of all laws perceived as natural by human reason’.

200 See Rommen (1936) ch IV.

201 Thus (in the 16th century) Vitoria and (in the 17th century) Suarez argued (following Plato) that political society is the natural state of human beings, which includes an international society, with its own authority and laws which establish the rights and duties of persons and States (referred to as the ius gentium), which (as universal) included and gave rights to non-Europeans: see Vitoria, ‘De Indis’ (1539); Suarez, ‘On Laws and God the Lawgiver’ (1612); Shaw (2003) 22; Kelly (1992) 170; Kennedy (1986); Nussbaum (1954) 79 ff.

202 Hall (2001); Neff (2003) 38; Hochstrasser (2000) 150 ff; Kelly (1992) 260 ff.

203 See III.A above.

204 Wolff (1749) 9; see Nussbaum (1954) 150; Wheaton (1845) 180 ff; Wardhaugh (1989) 327 ff. A different interpretation is suggested by Hershey (1912) 37.

205 Neff (2003) 38–9; Hochstrasser (2000) 72 ff; Wheaton (1845) 176; Wardhaugh (1989) 327–8.

206 Hochstrasser (2000) 165 ff.

207 See Hochstrasser (2000) 178–9; Kelly (1992) 299.

208 See III.C above.

209 Wolff (1749) prolegomena, 12.

210 Kant, Groundwork for the Metaphysics of Morals (trans Gregor, MCUP Cambridge 1996 1785); id The Metaphysics of Morals (trans M Gregor CUP Cambridge 1996 1797); Hochstrasser (2000) 198; Kelly (1992) 261 ff; Rommen (1936) 100 ff.Google Scholar

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212 Blackstone ‘Commentaries on the Law of England’ vol IV (John Exshaw Dublin 1765–9) ch 5 (emphasis added); see Janis (2004) 10 ff.

213 Dickinson, E ‘The Law of Nations as Part of the National Law of the United States’ (1952) 101 University of Pennsylvania Law Review 26 at 27.CrossRefGoogle Scholar

214 Wheaton (1836) 54.

215 ibid 136 ff. The personal relationship between Wheaton (official Reporter of the decisions of the Supreme Court) and Justice Story may have been influential in the development of these ideas: see

Dunne, GJustice Joseph Story and the Rise of the Supreme Court (Simon & Schuster New York 1970) 200.Google Scholar

216 Wheaton, Elements of International Law (8th ednSampson Low London 1866) 112.Google Scholar

217 Wolff (1950) 33; Kennedy (1996); Koskenniemi (2002).

218 See Hall (2001) 273. Hall alternatively (at 276) characterizes this as ‘the politicization of Enlightenment naturalism into radical political ideology’.

219 Boyle, J ‘Legal Realism and the Social Contract’ (1993) 78 Cornell Law Review 371;Google ScholarLessnoff, MSocial Contract (Macmillan London 1986) 87 ff; even Kant was insistent that the social contract was only hypothetical—see part II of Kant's essay ‘Concerning the Common Saying: This May be True in Theory but It Does Not Apply in Practice’, in Reiss (ed) Kant's Political Writings (1970).CrossRefGoogle Scholar

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222 Allott (2002) 328–9; Neff (2003) 45; note the naturalistic account of economic development in

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223 This is unsurprising given the pre-eminence he gave to Roman law. It is interesting to note that Savigny was writing in the context of the customs union which preceded German unification: another context of diversity within a unified system—see II.C, III.D.1 above; Nussbaum (1954) 192 ff.

224 See Nadelmann, K ‘Joseph Story's Contribution to American Conflicts Law: A Comment’ (1961) Am J Legal Hist 230 at 249.CrossRefGoogle Scholar

225 See, eg Kelly (1992) 309, 320 ff; Koskenniemi (2002) 44; H Berman ‘The Historical Foundations of Law’p (2005) 54 Emory Law Journal 13. Savigny lectured at the University of Berlin in the enormous shadow of Hegel's influence, and in fact taught historical jurisprudence to a young Karl Marx, whose writings continued to bear a Hegelian hallmark despite his later rejection of Hegel's idealism. See V.A below.

226 Savigny (1880) 68; Wolff (1950) 35–6.

227 Bar (1892) 55 describes Savigny's approach in a way which emphasizes its natural law origins; see also Lipstein (1972) 133 ff; A Nussbaum ‘Rise and Decline of the Law-of-Nations Doctrine in the Conflict of Laws’ (1942) 42 Columbia LR 189 (henceforth, Nussbaum (1942)), 191 ff—but note (at 196) Nussbaum's argument that Savigny was not visualising the sort of international community posited by Wolff.

228 Savigny (1880) 71; de Nova (1966) 459 ff.

229 Perhaps positing an international system of regulation as a counter to the growth of global liberalism—see VI.A below. See also discussion in M Reimann ‘Savigny's Triumph? Choice of Law in Contracts Cases at the Close of the Twentieth Century’ (1999) 39 Virginia J of Intl Law 571 (henceforth, Reimann (1999)) 599 ff.

230 Savigny (1880) 140–2. Although at 48 he does appear to suggest that the statutist methodology (fixing the limits of each law) would give the same results as his approach (fixing the law of each legal relation) in any event.

231 See III.D.4 above.

232 Savigny (1880) 147; see also Castel (1994) 29; Collier (2001) 381. The popularity of the idea of vested rights seems inconsistent with the obvious logical flaw that Savigny points out— that for rights to ‘vest’ you must have already determined which legal system applies, hence the idea is circular. Perhaps the reason for its popularity is that whether or not it is circular depends on your concept of law. If you adopt a legal positivist position, and ‘rights’ exist only when enforced by a legal system, the idea of ‘vested rights’ is circular, if not nonsensical. If, however, you adopt a natural law position, rights exist at the time an act or event occurs—according to natural law, not the law of any actual legal system—and there is an obligation on a legal system to recognize them. Such rights may rest on a (natural or international law) claim about the supreme territorial sovereignty of each State—such as that made by Huber. The attachment of Huber and even Dicey to this position shows a closer affinity to natural law theory than is usually recognized.

233 Savigny (1880) 140; Reimann (1999) 594 ff.

234 Wolff (1950) 36.

235 Juenger (2001a) 33; Yntema (1953) 311.

236 Yntema (1953) 309; Paul (1991) 29 ff.

237 See III.D.1 above; Wolff (1950) 35; Savigny (1880) 51 (Guthrie note), 75–6 (Guthrie note); Paul (1991) 29–30.

238 Savigny (1880) 144–7.

239 Although arguably the dominance of liberal theory (and its natural law foundations—see IV.A above) means that this would not have appeared to Savigny to undermine the universal or natural law character of his approach.

240 Westlake (1858) 158 interestingly explains the fact that procedure is governed by forum law by characterizing procedural rules as commands issued to the judge, not the individual.

241 Savigny (1880) 76 ff; see also Guthrie's note on the uncertainty of defining ‘public policy’ in practice at 81–4. Bar (1892) 65 accepts that ‘owing to the far-reaching differences in the moral conceptions of different nations and States, there must be gaps in the international community of law’, but advocates a narrow public policy exception for the reason of its potential uncertainty— only immoral legal relations to be realised in the forum territory can be disapplied under forum public policy; see further Savigny (1880) 84 (Guthrie note).

242 Savigny (1880) 80; de Nova (1966) 469 ff. This is of course the opposite of what actually happened in the 19th century—see V.B below. This ‘progressive’ view of history again shows the influence of Hegel on Savigny: see V.A below; Savigny (1880) 57—‘the positive law itself has its seat in the people as a great natural whole’; ‘it is only in the State that the will of individuals is developed into a common will, it is there only that the nation has a realized existence’.

243 Bar (1892) 77.

244 ibid 56.

245 ibid 2.

246 To apply only local law would, according to Bar, not merely lead to loss of trade, but ‘would lead in many cases to a simple denial of the rights of the foreigner, and even of the native citizen himself, or in other words, would deprive international intercourse of all legality’—Bar (1892) 2. Note that Bar here appears to draw upon both the language of vested rights theory (see III.D.2 above), rejected by Savigny, and a sort of natural law theory, in his claim that a direction to apply local law would lack ‘legality’. Note also the apparent influence of Mancini—see n 274 below.

247 See VI.A below.

248 Bar (1892) 3.

249 Some direct advocates of Savigny's approach who are not discussed are Phillimore, Beach-Lawrence, Wharton, Asser, Zitelmann: see Wolff (1950) 37; Bar (1892) 61; Reimann (1999) 597 ff; d'Oliveira (2002);

Juenger, FK ‘Private International Law or International Private Law?’ (1994) 5 King's College LJ 45 (henceforth Juenger (1994)); Nussbaum (1942) 196 ff. Savigny's influence in the United States may also be attributed to Field, who, accepting the idea of private international law as part of a broader international law system, argued for a greater influence of territorialism in Savigny's method. Field's influence is perhaps most apparent in his brother's role as a Supreme Court judge, for example in Pennoyer v Neff (1877) 95 US 714. See further F Juenger ‘David Dudley Field's Contribution to the Conflict of Laws’ in Selected Essays on the Conflict of Laws (Transnational Publishers Ardsley NY 2001) (henceforth Juenger (2001b)); Weinstein (1990) 76 ff.Google Scholar

250 This term has been used in a number of different senses: see Allott (2002) 332; Hershey (1912) 34; Neff (2003) 41 ff. Neff's approach is adopted here.

251 Neff (2003) 41 ff; Shaw (2003) 28–9. A central issue of the historicist approach, which emerges from this dualism, is that it is sometimes ambiguous about whether it is a descriptive or normative project, whether it claims that ‘progress’ is inevitable or desirable. One famous instance of this ambiguity is the problem of revolution in Marxism, which is both the inevitable result of material historical forces, and a ‘call to arms’.

252 Rommen (1936) Chapter V; see III.B above.

253 Particularly Wolff and Kant: see IV.A above; Hochstrasser (2000) 174 ff. Note however that Kant's conception of humanity as social was a claim about rationality not historical inevitability.

254 Expressed in the French Constitution and the Code Civil of 1804. Note also the emphasis on international law as the law of ‘peoples’ in the ‘Project for a Declaration of the Law of Nations’ proposed by Gregoire in 1793: see Hershey (1912) 44.

255 See Nicholas (1975) 51 ff; Kelly (1992) 311 ff; Nussbaum (1954) 120.

256 See II.B.1 above.

257 See, eg Hegel, GWF ‘Elements of the Philosophy of Right’ (1821) (Wood, A (ed) (CUP Cambridge 1991) (henceforth Hegel (1821)) 275; Hochstrasser (2000) 217 ff; Kelly (1992) 307 ff; Nussbaum (1954) 236 ff. The debt owed by Marx to Hegel is obvious here. Marx, however, adopted a more critical perspective towards the unity of the national will, highlighting the role of competing classes—see Rommen (1936) 125. In this Marx also owed a debt to the Sophists of ancient Greece—see Rommen (1936) 9.Google Scholar

258 Rommen (1936) 119.

259 Hegel is following a line of argument developed in, for example, Kant (1785).

260 Neff (2003) 47; Wheaton (1845) 754 ff.

261 Koskenniemi (2002) 32.

262 Hegel (1821) 366–7; see also Kelly (1992) 345–6.

263 Hegel (1821) 368.

264 ibid 367.

265 From ‘undeveloped’ to ‘developed’ nations, from the ‘third world’ to the ‘first world’. This theory was expounded, for example, by Maine (1861); see Koskenniemi (2002) 75.

266 Hegel viewed war as a natural part of the resolution of the conflict of State wills—see Hegel (1821) 369. The widespread influence of the idea of a moral hierarchy may broadly be recognized in both Marxism and, in combination with late twentieth century Social Darwinism, fascism, which shared a belief in the moral superiority of one form of the State, as arguably does contemporary American liberalism. Rommen argues, alternatively, that totalitarianism is the inevitable consequence of the adoption of positivism—see Rommen (1936) 152. For the influence of Hegel on Marx (through Savigny) see n 225 above. Nussbaum (1954) 238 discusses the openly hierarchical approach developed by Lorimer under this influence.

267 See III.B above.

268 Yntema (1953) 309.

269 Wolff (1950) 38; Kelly (1992) 346; Lorenzen (1947) 197 ff; Koskenniemi (2002) 66; Nussbaum (1954) 240 ff. Mancini was the author of a wide-ranging variety of works—see

Jayme, EPasquale Stanislao Mancini (Gremer Ebelsbach 1980, in German; 1988, trans. into Italian by Antonio, Ruini) (henceforth Jayme (1980)).Google Scholar

270 Bar (1892) 73–4; Nussbaum (1954) 242; Nussbaum (1942) 192 ff; de Nova (1966) 464 ff. It is important here to distinguish an approach based on ‘nationality’ from one based on ‘nationalism’—Mancini's approach was far from being motivated by the interests of a single nation. In fact (like Savigny) he argued for an international order, which (unlike Savigny) adopted nationality as the founding concept and the key determinant in attributing legal disputes to States. The absence of nationalism is demonstrated, for example, by the development of the exequatur as a streamlined method for the recognition of foreign judgments in the Italian Civil Code of 1865— see n 280 below.

271 Wolff (1950) 38.

272 Bar (1892) 64; see II.B.1 above.

273 Juenger (2001a) 39; cf Bar (1892) (see n 246 above).

274 Note the Institut's resolution of 5 Sept 1874, para IV: The recognition of foreign laws or rights ‘could not be the consequence of simple courtesy and propriety (comitas gentium), but the recognition and the respect of these rights on behalf of all the States must be regarded as a duty of international justice’ (trans. by author). On the role of the Institut see further Koskenniemi (2002).

275 See III.D above.

276 See II.B above.

277 Bar (1892) 63.

278 See Bar (1892) 69 ff for criticism of the historicist school's characterization of public laws. Bar argues at 73 that in the end it must fall back on examining the ‘end and object of the law’, which Bar identifies as Savigny's approach.

279 Wolff (1950) 39.

280 The Italian Civil Code, at least the section dealing with private international law, was probably in fact written, not merely influenced, by Mancini—see Jayme (1980); de Nova (1966) 465 ff.

281 Juenger (2001b) 64; Bar (1892) 64.

282 Wolff (1950) 38–9, 49.

283 See VI.A below.

284 Juenger (2001b) 66; Nussbaum (1954) 241–2.

285 See IV.B above.

286 Wolff (1950) 42 ff; Yntema (1966) 31; Paul (1991) 25; Juenger (1994); Wardhaugh (1989) 331; de Nova (1966) 471 ff; note the possible influence of this movement on Dicey—see n 194 above. Nussbaum (1954) 235 ff emphasizes a link between codification and the rise of positivism.

287 See V.B above.

288 See generally discussion in Lorenzen (1947); d'Oliveira (2002) 113.

289 Yntema (1953) 298, 307, 312; Juenger (2001b) 66; Lorenzen (1947) 115 ff; de Nova (1966) 476. Earlier work from this perspective was also done by Wächter—see, eg de Nova (1966) 452 ff.

290 Evidence of the problems caused by a diversity of legal categories may be seen in the ‘problem’, ‘theory’ or ‘device’ of characterization, under which ambiguities in private international law ‘categories’ are arguably susceptible to being exploited, with judges interpreting cases as belonging to the category which gives the most favourable result: see Dicey and Morris (2000) ch 2; Lorenzen (1947) 115 ff; Lipstein (1972) 198 ff. Of course this may result not merely from diversity in legal categories, but from ambiguity or flexibility in the categories themselves, within a legal system: see for example L Collins ‘Interaction Between Contract and Tort in the Conflict of Laws’ (1967) 16 ICLQ 103.

291 Wolff (1950) 11; Nussbaum (1942) 203 ff.

292 See Juenger (1994); Reimann (1999); Cheshire and North (1999) 9; Paul (1988).

293 But see the account of the persistence of these ideas in some continental writers by Nussbaum (1942) 194 ff; note also Paul (1988) 162; de Nova (1966) 468, 473 ff.

294 See III.C above.

295 See III.C above; Allott (2002) 331; Wolff (1950) 11.

296 See III.C above; Kennedy (1996); Paul (1991) 25. This conception also ignores local or regional variation in the interpretation and application of public international law.

297 A Fachiri ‘Recognition of Foreign Laws by Municipal Courts’ (1931) 12 BYBIL 95 at 103; see further Paul (1988) 163 ff.

298 Verzijl, JInternational Law in Historical Perspective vol 1 (A Sijthoff Leyden 1968) 191Google Scholar

299 See generally Cutler, AC ‘Artifice, Ideology and Paradox: The Public/Private Distinction in International Law’ (1997) 4 Review of Intl Political Economy 261;CrossRefGoogle Scholarid Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (CUP Cambridge 2003);Google ScholarZumbansen, P ‘Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law’ (2004) 15 EJIL 197;CrossRefGoogle ScholarCharlesworth, H ‘The Public/Private Distinction and the Right to Development in International Law’ (1988–9) 12 Aust Yb IL 190.Google Scholar

300 See, eg, Horwitz, M ‘The History of the Public/Private Distinction’ (1982) 130 U Pa L Rev 1423 (henceforth Horwitz (1982));CrossRefGoogle ScholarKennedy, Duncan ‘The Stages of Decline of the Public/Private Distinction’ (1982) 130 U Pa L Rev 1349; Paul (1988) 153 ff.CrossRefGoogle Scholar

301 Note the famous judgment by Story (consistent with his own role in the development of private international law—see III.D.2 above) distinguishing public and private corporations in Trustees of Dartmouth College v Woodward (1819) 17 US 518 at 669–73; see Horwitz (1982) 1425. The connection is most obvious in the priority given to party autonomy in private international law:

see for example Yntema, H ‘Contract and Conflict of Laws: ‘Autonomy’ in Choice of Law in the United States’ (1955) 1 New York Law Forum 46.Google Scholar

302 Paul (1988) illustrates this through case studies at 164 ff.

303 Cutler, AC ‘Artifice, Ideology and Paradox: The Public/Private Distinction in International Law’ (1997) 4 Review of Intl Political Economy 261 at 279.CrossRefGoogle Scholar

304 See II.B above.

305 See further discussion in ‘Academic Workshop: Should we continue to distinguish betweeen public and private international law’ (1985) 79 ASIL Proc 352.Google Scholar