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 important, 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 contemporary private
international law rules and approaches. However, this approach can
only tell a genealogical history of the contemporary 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 important 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 contemporary *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 contemporary 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 shift, and which
arguably are indeed shifting. 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 contemporary 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 important
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 importance of ethnic or tribal
communities. [FN28] Physical boundaries between different peoples were
fluid and largely unimportant-- 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 important, 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 important 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 supported 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 membership of a tribe or national group. Secondly, the
idea of local law, law associated with a particular territory or
region, reflecting the increased importance 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 circumstances), 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
flourishing 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'Argentré, 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'Argentré 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 importance 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'Argentré) [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 supporting 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,
importing 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 important 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 temporarily) 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 supports 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 important
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 important, 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 relationship, 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 important
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 importance 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
importance 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 importance 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 support 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 support 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
circumstances. 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
important 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'.

From 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 contemporary struggle to develop mechanisms by which
public international law can (re)regulate the increasingly important
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 circumstances 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 portrays 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 important 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 important
domain of private international interactions. The modern metamorphosis
of international norms requires a reconceptualization of contemporary
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 Cassese International Law (OUP
Oxford 2001) (henceforth, Cassese (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)

Cheshire and North's Private International Law (13th edn Butterworths
London 1999) (henceforth Cheshire 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 '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)--'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 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 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'.

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 important 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 Contemporary 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 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).

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 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.

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: 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.

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
(Lakimieslüton 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 scholarship: David Kennedy 'Primitive Legal
Scholarship' (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 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.

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 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.

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: see Yntema (1953) 305; Yntema (1966) 18; Kelly (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.

FN65. 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; Westlake (1880) 12.

FN66. Bar (1892) 35; Westlake (1880) 17; Yntema (1953) 306; Yntema
(1966) 15-6; Lorenzen (1947) 137 ff; Lipstein (1972) 120-1; Nussbaum
(1954) 75.

FN67. Wolff (1950) 26; Juenger (2001a) 14.

FN68. Bar (1892) 35; Gutzwiller (1977) 296.

FN69. 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.

FN70. 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.

FN71. 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.

FN72. See II.A.2 above.

FN73. Baker (1993) 463 ff; Cheshire and North (1999) 16; Lipstein
(1972) 126 ff.

FN74. Nussbaum (1954) 74.

FN75. See II.B.3 above.

 FN76. Juenger (2001a) 19 ff; Shaw (2003) 19; Paul (1991) 18;
Nussbaum (1954) 28; Baker (1979).

FN77. 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); AE Anton 'The Introduction into English
Practice of Continental Theories on the Conflict of Laws' (1956) 5
ICLQ 534; Juenger (2001a) 22-3; Westlake (1880) 8; Paul (1991) 17 ff;
J Paul 'The Isolation of Private International Law' (1988) 7 Wis Intl
L J 149 (henceforth Paul (1988)) at 159; AN Sack, 'Conflicts of Laws
in the History of English Law' in A Reppy (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.

FN78. See n 35 above.

FN79. Rommen (1936) 61; B Wardhaugh '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.

FN80. 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.

FN81. Although of course it carries theoretical presumptions and

implications, in particular concerning epistemology and ontology--see
n 83 below.

FN82. Neff (2003) 40-1; see also Kelly (1992) 223 ff.

FN83. Shaw (2003) 25; Kelly (1992) 271. This was itself borrowed
from the Greek Skeptics: see Rommen (1936) 20.

FN84. Neff (2003) 41; see 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.

FN85. See II.C above.

FN86. See above n 64.

 FN87. 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.

FN88. Machievelli The Prince (OUP Oxford (trans by P Bondanella

and M Musa 1984) 1513); Hobbes Leviathon (Andrew Crooke London 1651);
see Kelly (1992) 172; Nussbaum (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).

FN89. See, eg, E de Vattel The Law of Nations, or the Principles

of National Law applied to the Conduct and to the Affairs of Nations
and Sovereigns (1758, trans. CG Fenwick (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).

FN90. Neff (2003) 38; Kelly (1992) 145; Kennedy (1986) 94; see
Nussbaum (1954) 94 ff on the development of this idea by Gentili 112
on its further adoption by Grotius; see also Wheaton (1845) 50 ff;
Wheaton (1836) 16 ff.

FN91. Rommen (1936) 59 ff.

FN92. See VI.A below; note the discussion of the history of the
idea of 'autonomy' in private international law in H Yntema '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.

FN93. Neff (2003) 44; Kelly (1992) 345 ff; Nussbaum (1954) 196 ff;
A Hershey 'History of International Law Since the Peace of
Westphalia' (1912) 6 AJIL 30 (henceforth, Hershey (1912)) at 55 ff.

FN94. 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; M Koskenniemi The Gentle Civilizer of
Nations: The Rise and Fall of International Law 1870-1960 (CUP
Cambridge 2002) (henceforth Koskenniemi (2002)); Hershey (1912) 46 ff.

FN95. 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).

FN96. 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'.

FN97. See David Kennedy 'International Law and the 19th Century:
History of an Illusion' (1996) 65 Nordic J of Intl Law 385 (henceforth
Kennedy (1996)) 398.

FN98. See generally Yntema (1953) 305; Yntema (1966) 16 ff; Shaw
(2003) 23-4; Nussbaum (1954) 102 ff; Wheaton (1845) 54 ff; L Ehrlich
'The Development of International Law as a Science' (1962) 105-I
Recueil des Cours 171 (henceforth

Ehrlich (1962)).

FN99. 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.

FN100. See Grotius Of the Law of War and Peace (1625, trans. F
Kelsey (Carnegie Institution of Washington Washington 1925)
(henceforth, Grotius (1625)); Neff (2003) 37; Hershey (1912) 31 ff; TJ
Hochstrasser Natural Law Theories in the Early Enlightenment (CUP
Cambridge 2000) 53 (henceforth Hochstrasser (2000)) 4, 9; Kelly (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).
 FN101. Grotius (1625) Bk 1 Ch I Pt X.1

FN102. 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.

FN103. Grotius (1625) Prolegomena para 17, 40; Kennedy (1986) 82;
Westlake (1880) 18; Nussbaum (1954) 108-9; Wheaton (1836) 35 ff.

FN104. Grotius (1625) Prolegomena para 24; see also Yntema (1966)
20; Wheaton (1845) 91 ff.

FN105. 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.

FN106. 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.

FN107. 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.

FN108. Grotius (1625) I Prolegomena 17; see H Bull 'The Grotian

Conception of Internatioanal Society' (1966) 95 in Hedley Bull on
International Society (Macmillan Basingstoke 2000) (henceforth Bull
(1966a)).

FN109. See Kelly (1992) 61.

FN110. Neff (2003) 38; Cassese (2001) 19 ff; Nussbaum (1954) 115;
Hershey (1912); Wheaton (1845) 69 ff.

FN111. Neff (2003) 42; contrast n 51 above. This is an idea still

expressed in

Art 2(7) of the United Nations Charter.

FN112. Hall (2001) 274; Yntema (1966) 30; Bull (1966a) 111 ff;
Hershey (1912) 33 ff.
 FN113. See III.B above; Kelly (1992) 214; see discussion in
Malcolm (2002) ch 13; H Bull 'Society and Anarchy in International
Relations' (1966) 77 in Hedley Bull on International Society
(Macmillan Basingstoke 2000) 84 ff (henceforth, Bull (1966b)); H Bull
'Hobbes and the International Anarchy' (1981) 188 in Hedley Bull on
International Society (Macmillan Basingstoke 2000).

FN114. S Pufendorf 'On the Law of Nature and of

Nations' (Clarendon Press Oxford (trans by WA Oldfather 1934) 1672);
Shaw (2003) 24; Hochstrasser (2000) 40 ff, 90.

FN115. 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'.

FN116. Kelly (1992) 224; Nussbaum (1954) 146-7.

FN117. See Wheaton (1845) 100.

FN118. See IV.A below.

FN119. 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.

FN120. Hochstrasser (2000) 179; Bull (1966a); Wheaton (1845) 186

ff.

FN121. 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.'

FN122. 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.
 FN123. Vattel (1758) 7.

FN124. Cassese (2001) 10 ff.

FN125. 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.'

FN126. Neff (2003) 38-42; Cassese (2001) 5 ff.

FN127. J Bentham Introduction 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; MW Janis The
American Tradition of International Law (OUP Oxford 2004) (henceforth,
Janis (2004)) 1 ff.

FN128. Vattel (1758) 8. See also C Wolff The Law of Nations

According to a Scientific Method (1749/1764, trans. JH Drake
(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.

FN129. 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).

FN130. 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.

FN131. 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).

FN132. See, eg Nussbaum (1954) 234.

FN133. Hochstrasser (2000) 181.

FN134. Nussbaum (1954) 194 ff; Hershey (1912) 49 ff.

FN135. See generally G Simpson Great Powers and Outlaw States:

Unequal Sovereigns in the International Legal Order (CUP Cambridge
2004).

FN136. 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.

FN137. See III.C above.

FN138. 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.

FN139. 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.

FN140. See H Fox 'International Law and the Restraints on the

Exercise of Jurisdiction by National Courts of States' in M Evans (ed)
International Law (OUP Oxford 2003).
 FN141. 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.

FN142. See III.C above.

FN143. Yntema (1966) 17 ff; Weinstein (1990) 97 ff; Paul (1991)

15; Lorenzen (1947) 138.

FN144. Yntema (1953) 299 ff. Note discussion in Savigny (1880) 65.

FN145. Yntema (1966) 22 ff; Paul (1991) 15.

FN146. Yntema (1966) 23-4.

FN147. 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; L Collins
'Comity in Modern Private International Law' in J Fawcett (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.

FN148. Hilton v Guyot (1895) 159 US 113 at 163-4.

FN149. Bar (1892) 39.

FN150. See VI.A below; Nussbaum (1954) 141-2; de Nova (1966) 449.

FN151. 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.

FN152. Bar (1892) 38; Westlake (1880) 22; Yntema (1966) 25 ff.

FN153. Wolff (1950) 27; Yntema (1953) 306.

FN154. 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.

FN155. 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.
 FN156. It might be argued that they were implied by Dutch
commercial needs in particular.

FN157. 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.

FN158. Juenger (2001a) 16.

FN159. See Davies (1937) 58 ff; de Nova (1966) 449 ff.

FN160. 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.

FN161. J Story Commentaries on the Conflict of Laws (Little Brown

Boston Mass 1834) (henceforth Story (1834)); K Nadelmann '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.

FN162. 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).

FN163. 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); K
Nadelmann '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: K Nadelmann Conflict of Laws, International and InterState
(Nijhoff The Hague 1972) 5.
 FN164. Paul (1988) 161; K Nadelmann '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; see further
remarks by F Juenger in

'Academic Workshop: Should we continue to distinguish betweeen

public and private international law' (1985) 79 Am Soc IL Proc at 353
ff.

FN165. See Wardaugh (1989). Story was influenced by Pufendorf, and

by the natural law philosopher 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.

FN166. 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,

FN167. 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.

FN168. What was included was arguably just a restatement of Huber;

see

Lipstein (1972) 130 ff; Bar (1892) 46.

FN169. See Baker (1993) 482 ff, 490 ff.

FN170. 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.

FN171. Story (1834) 20; Born (1996) 547 ff; Collier (2001) 378.

FN172. Story (1834) 23.

FN173. See III.D.1 above.

FN174. Wardhaugh (1989) 308.

 FN175. 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).

FN176. 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.

FN177. See Wardhaugh (1989) 321 ff.

FN178. Westlake (1880) 2.

FN179. ibid vi.

FN180. ibid 16.

FN181. Westlake (1858) iii; id (1880) 4ff.

FN182. AV Dicey 'His Book and His Character' in Memories of John

Westlake (London 1914) (henceforth, Dicey (1914)) 26; de Nova (1966)
471; see IV.B below.

FN183. 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.

FN184. 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.

FN185. Westlake (1858) 149.

 FN186. 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.

FN187. 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.

FN188. 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.

FN189. Echoing the idea of 'vested rights' implicit in Huber's

third rule and arguably in Story and Dicey (see III.D.4 below).

FN190. Westlake (1858) 154, emphasis in original.

FN191. AV Dicey Digest 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; C Morse
'Making English Private International Law' in J Fawcett (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.

FN192. AV Dicey (1896); still reflected in Dicey and Morris (2000)

4; see VI.A below.

FN193. AV Dicey The Law of Domicile as a Branch of the Law of

England (Stevens and Sons London 1879), Introduction iv. v (see Bar
(1892) 3).

FN194. Perhaps drawing on the late 19th-century codification

trend: see Morse (2002) 278 ff; V.B below.

FN195. Dicey (1896) 10.

FN196. 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.

FN197. R Fentiman '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.

FN198. 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).

FN199. 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'.

FN200. See Rommen (1936) ch IV.

FN201. 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.

FN202. Hall (2001); Neff (2003) 38; Hochstrasser (2000) 150 ff;
Kelly (1992) 260 ff.

FN203. See III.A above.

FN204. Wolff (1749) 9; see Nussbaum (1954) 150; Wheaton (1845) 180
ff; Wardhaugh (1989) 327 ff. A different interpretation is suggested
by Hershey (1912) 37.

FN205. Neff (2003) 38-9; Hochstrasser (2000) 72 ff; Wheaton (1845)

176; Wardhaugh (1989) 327-8.

FN206. Hochstrasser (2000) 165 ff.

FN207. See Hochstrasser (2000) 178-9; Kelly (1992) 299.

FN208. See III.C above.

FN209. Wolff (1749) prolegomena, 12.

 FN210. Kant Groundwork for the Metaphysics of Morals (trans M
Gregor CUP 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.

FN211. P Capps 'The Kantian Project in Modern International Legal

Theory' (2001) 12 EJIL 1003; Kelly (1992) 300; Kant Perpetual Peace in
H Reiss (ed) 'Kant's Political Writing' (CUP Cambridge 1990) 1795); id
Idea for a Universal History with a Cosmopolitan Purpose in H Reiss
(ed) 'Kant's Political Writing' (CUP Cambridge 1990) 1784); Nussbaum
(1954) 143-4; Bull (1966b) 91 ff; Wheaton

(1845) 750 ff.

FN212. Blackstone 'Commentaries on the Law of England' vol IV

(John Exshaw Dublin 1765-9) ch 5 (emphasis added); see Janis (2004) 10
ff.

FN213. E Dickinson 'The Law of Nations as Part of the National Law

of the United States' (1952) 101 University of Pennsylvania Law Review
26 at 27.

FN214. Wheaton (1836) 54.

FN215. 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
G Dunne Justice Joseph Story and the Rise of the Supreme Court (Simon
& Schuster New York 1970) 200.

FN216. Wheaton Elements of International Law (8th edn Sampson Low

London 1866) 112.

FN217. Wolff (1950) 33; Kennedy (1996); Koskenniemi (2002).

FN218. See Hall (2001) 273. Hall alternatively (at 276)

characterizes this as

'the politicization of Enlightenment naturalism into radical

political ideology'.

FN219. J Boyle 'Legal Realism and the Social Contract' (1993) 78

Cornell Law Review 371; M Lessnoff Social 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).

FN220. For Rousseau, 'citizenship' reconciled the particularity of

individual will (through contract) and the universality of public will
(through the society's contract): see Rousseau The Social Contract or
Principles of Political Right (trans CM Sherover; Harper & Row New
York 1984 1762). On the history of the social contract generally see
Kelly (1992) 253 ff; note that the 'social contract' device dates to
the ancient Greeks--Kelly (1992) 14.

FN221. Hochstrasser (2000) 5; see also Shaw (2003) 26.

FN222. Allott (2002) 328-9; Neff (2003) 45; note the naturalistic
account of economic development in A Smith The Wealth of Nations
(Penguin London 1999 1776).

FN223. 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.

FN224. See K Nadelmann 'Joseph Story's Contribution to American

Conflicts Law: A Comment' (1961) Am J Legal Hist 230 at 249.

FN225. See, eg Kelly (1992) 309, 320 ff; Koskenniemi (2002) 44; H
Berman 'The Historical Foundations of Law' (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.

FN226. Savigny (1880) 68; Wolff (1950) 35-6.

FN227. 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.

FN228. Savigny (1880) 71; de Nova (1966) 459 ff.

FN229. 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.

FN230. 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.

FN231. See III.D.4 above.

FN232. 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.

FN233. Savigny (1880) 140; Reimann (1999) 594 ff.

FN234. Wolff (1950) 36.

FN235. Juenger (2001a) 33; Yntema (1953) 311.

FN236. Yntema (1953) 309; Paul (1991) 29 ff.

FN237. See III.D.1 above; Wolff (1950) 35; Savigny (1880) 51

(Guthrie note), 75-6 (Guthrie note); Paul (1991) 29-30.

FN238. Savigny (1880) 144-7.

FN239. 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.

FN240. 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.

FN241. 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).

FN242. 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'.

FN243. Bar (1892) 77.

FN244. ibid 56.

FN245. ibid 2.

FN246. 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.

FN247. See VI.A below.

FN248. Bar (1892) 3.

FN249. Some direct advocates of Savigny's approach who are not

discussed are Phillimore, BeachLawrence, Wharton, Asser, Zitelmann:
see Wolff (1950) 37; Bar (1892) 61; Reimann (1999) 597 ff; d'Oliveira
(2002); FK Juenger '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.

FN250. 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.

FN251. 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'.

FN252. Rommen (1936) Chapter V; see III.B above.

FN253. 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.

FN254. 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.

FN255. See Nicholas (1975) 51 ff; Kelly (1992) 311 ff; Nussbaum
(1954) 120.

FN256. See II.B.1 above.

FN257. See, eg GWF Hegel 'Elements of the Philosophy of

Right' (1821) (A Wood (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.

FN258. Rommen (1936) 119.

FN259. Hegel is following a line of argument developed in, for

example, Kant (1785).

FN260. Neff (2003) 47; Wheaton (1845) 754 ff.

FN261. Koskenniemi (2002) 32.

FN262. Hegel (1821) 366-7; see also Kelly (1992) 345-6.

 FN263. Hegel (1821) 368.

FN264. ibid 367.

FN265. 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.

FN266. 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.

FN267. See III.B above.

FN268. Yntema (1953) 309.

FN269. 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 E Jayme Pasquale Stanislao
Mancini (Gremer Ebelsbach 1980, in German; 1988, trans. into Italian
by Antonio Ruini) (henceforth Jayme (1980)).

FN270. 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.

FN271. Wolff (1950) 38.

FN272. Bar (1892) 64; see II.B.1 above.

FN273. Juenger (2001a) 39; cf Bar (1892) (see n 246 above).

FN274. 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).

FN275. See III.D above.

FN276. See II.B above.

FN277. Bar (1892) 63.

FN278. 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.

FN279. Wolff (1950) 39.

FN280. 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.

FN281. Juenger (2001b) 64; Bar (1892) 64.

FN282. Wolff (1950) 38-9, 49.

FN283. See VI.A below.

FN284. Juenger (2001b) 66; Nussbaum (1954) 241-2.

FN285. See IV.B above.

FN286. 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.

FN287. See V.B above.

FN288. See generally discussion in Lorenzen (1947); d'Oliveira

(2002) 113.

FN289. 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.
 FN290. 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.

FN291. Wolff (1950) 11; Nussbaum (1942) 203 ff.

FN292. See Juenger (1994); Reimann (1999); Cheshire and North

(1999) 9; Paul (1988).

FN293. 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.

FN294. See III.C above.

FN295. See III.C above; Allott (2002) 331; Wolff (1950) 11.

FN296. 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.

FN297. A Fachiri 'Recognition of Foreign Laws by Municipal

Courts' (1931) 12 BYBIL 95 at 103; see further Paul (1988) 163 ff.

FN298. J Verzijl International Law in Historical Perspective vol 1

(A Sijthoff Leyden 1968) 191

FN299. See generally AC Cutler 'Artifice, Ideology and Paradox:

The Public/Private Distinction in International Law' (1997) 4 Review
of Intl Political Economy 261; id Private Power and Global Authority:
Transnational Merchant Law in the Global Political Economy (CUP
Cambridge 2003); P Zumbansen 'Sustaining Paradox Boundaries:
Perspectives on Internal Affairs in Domestic and International
Law' (2004) 15 EJIL 197; H Charlesworth 'The Public/Private
Distinction and the Right to Development in International
Law' (1988-9) 12 Aust Yb IL 190.

FN300. See, eg, M Horwitz 'The History of the Public/Private

Distinction' (1982) 130 U Pa L Rev 1423 (henceforth Horwitz (1982));
Duncan Kennedy 'The Stages of Decline of the Public/Private
Distinction' (1982) 130 U Pa L Rev 1349; Paul (1988) 153 ff.
 FN301. 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 H Yntema 'Contract and Conflict of
Laws: 'Autonomy' in Choice of Law in the United States' (1955) 1 New
York Law Forum 46.

FN302. Paul (1988) illustrates this through case studies at 164

ff.

FN303. AC Cutler 'Artifice, Ideology and Paradox: The Public/

Private Distinction in International Law' (1997) 4 Review of Intl
Political Economy 261 at 279.

FN304. See II.B above.

FN305. See further discussion in 'Academic Workshop: Should we

continue to distinguish between public and private international
law' (1985) 79 ASIL Proc 352.