The Private History of International Law

Author(s): Alex Mills

Source: The International and Comparative Law Quarterly , Jan., 2006, Vol. 55, No. 1
(Jan., 2006), pp. 1-49
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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 THE PRIVATE HISTORY OF INTERNATIONAL LAW

ALEX MILLS*

I. INTRODUCTION AND METHODOLOGY

The purpose of this article is to address two related false assumptio

myths. The first is an assumption of public international law. It is the m
the history of international law is one of progressive expansion, of in
concern in public international law with matters traditionally consi
private or internal to States, and that this expansion is a relatively
phenomenon.' The second is an assumption of private international l
the myth that private international law is not actually international,
essentially and necessarily a part of the domestic law of States.
assumptions, taken together, constitute the myth that public and privat
national law are discrete, distinct disciplines, with independent, parall
ries. This article addresses these myths through an analysis of the ro
by international law theory in the history of private international law
A typical history of a subject like public or private international law i
nal' or 'intrinsic', a history of the development of legal doctrine an
within the discipline.3 In such a history, theories or approaches are p
chronologically, in a series of 'epochs' or competing 'paradigms'. The s
their succession is told simply as a historical fact, without significant

* Gonville & Caius College, University of Cambridge. I am grateful to the anonymou

ees of the International and Comparative Law Quarterly, and to Professor Philip Allott,
Erik Jayme, Dr Pippa Rogerson, Mr Tim Stephens, and particularly Mr Richard Fentima
helpful comments and suggestions.
1 M Shaw International Law (5th edn CUP Cambridge 2003) (henceforth, Sha
42-7; A Cassese International Law (OUP Oxford 2001) (henceforth, Cassese (2001)) 1
2 Thus, private international law is a 'branch of English law' in L Collins (ed) 'D
Morris on The Conflict of Laws' (13th edn Sweet & Maxwell London 2000) (hencefo
and Morris (2000)) 3; 'the rules of private international law are part of the internal law o
concerned' in Oppenheim's International Law (9th edn Longman Harlow 1992), 6; 'C
Laws is . . . part of the law of each State' in the Second ReStatement of the Confli
(American Law Institute St Paul Minn 1969) s 2; 'Principles and rules of the conflict of
not international, they are essentially national in character' in JG Castel Canadian
Laws (3rd edn Butterworths (Canada) Toronto 1994) 3; and 'Private international law..,.
tially municipal in origin and in legal effect' and 'each State is at liberty to determine th
of its own national rules of private international law' in J Verzijl International Law in
Perspective vol 1 (A Sijthoff Leyden 1968) 190. See also the Serbian and Brazilian Lo
France v Yugoslavia; France v Brazil PCIJ Ser A, nos 20-1 (1929).
3 On this concept see, eg P Allott The Health of Nations (CUP Cambridge 2002) (h
Allott (2002)) 340.

[ICLQ vol 55, January 2006 pp 1-50] doi: 10.1093/iclq/lei066

[email protected]

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2 International and Comparative Law Quarterly

to contextual factors - suggesting the discipline is propelled forwards by inter

nal dynamics.4
The application of this historical methodology to private international law
this 'story' of private international law, excludes something critical. Historica
study is of course necessarily limited and selective; it is about inclusion an
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.5 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'.6 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.7
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,8

4 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)).
5 'What you hold to be true about the world depends on what you take into account, and what
you take into account depends on what you think matters' - S Marks The Riddle of All
Constitutions (OUP Oxford 2000) 121.
6 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'.
7 B Blagojevic 'Theories des Statuts g la lumikre de l'histoire gindrale de l'dvolution de la
socidtd', 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 mani-
fested 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.
SThe sort of explanatory history set out in this article is in some ways an expansion or

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 The Private History of International Law 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 interna-
tional law, as expressed through the most influential writers and theorists in
international law.9 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, includ-
ing theorists not traditionally viewed as a part of the history of the discipline
of private international law. By exploring the intersections between the histo-
ries 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 inter-
national 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.10 Instead, private
international law theories, rules and approaches are reflections of and
responses to changes in their theoretical and social context. Private interna-
tional law rules and approaches do not merely reflect, as contemporary

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 charac-
terizing 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 coher-
ent or conceptually independent (in fact often they are not, and perhaps ought not to be--see H
Berman 'The Historical Foundations of Law' (2005) 54 Emory Law Journal 13), but only that
they were adopted and advocated, and that they were and remain influential.
9 This article focuses on European law, because most of the world's international law (public
and private) has been adopted or adapted from the European tradition. A separate tradition of
private international law, which was similar to the 'personal law' approach discussed in II.B. 1
below but probably predates the European tradition, was apparently developed in China (see JR
Paul 'Comity in International Law' (1991) 32 Harv Int LJ 1 (henceforth Paul (1991)) 35) but later
declined (see R Graveson 'The Origins of the Conflict of Laws' in Bernstein et al (eds),
Festschriftfiir Konrad Zweigert (Mohr Tiibingen 1981) (henceforth Graveson (1981)) 96ff, who
also considers the origins of private international law both within and outside the European tradi-
tion, particularly in Africa). Contemporary practice in China reflects the European tradition: see
Q Kong and H Minfei 'The Chinese Practice of Private International Law' (2002) 3 Melbourne
Journal Intl Law 414, who suggest (at 415) that 'Private international law was introduced in China
in the early 1980s'.
10 H Yntema 'The Historic Bases of Private International Law' (1953) 2 Am J Comp L 297
(henceforth, Yntema (1953)) at 317.

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4 International and Comparative Law Quarterly

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 inter-
national law depends on broader theoretical foundations-foundations which
may shift, and which arguably are indeed shifting. By revealing the condi-
tional 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 regula-
tion of 'private' matters, it also provides an account of a way in which inter-
national 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 contin-
gency of ideas of both public and private international law (and of the valid-
ity 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

beginning with Roman law. There were no private international law rul
what is now known about Roman law,"11 but ideas from Roman law play
key role in its gestation, and continue to exercise an influence on contem
rary theory. An understanding of the origins of private international law is
an essential prerequisite for an understanding of more modern approache

11 Understanding the ideas and conditions under which private international law rules fai
evolve also helps us to understand their foundations-see Graveson (1981) 95 ff. Note, how
that C Phillipson in The International Law and Custom of Ancient Greece and Rome (Macm
London 1911) (henceforth Phillipson (1911)) identifies 'rudiments' of private international l
ancient Greece (192), and 'elements' of private international law in ancient Rome (265). Note
the ancient 'conflict of laws' rules identified by P Vinogradoff in 'Historical Typ
International Law' in Collected Papers (Clarendon Press Oxford 1928) vol II 248, at 262 f
also Graveson (1981) 100.
12 Savigny argued that 'a right understanding and criticism of modern principles and pra
is only possible after a thorough examination of the doctrines of the Roman law': FC von Sa
A Treatise on the Conflict of Laws and the Limits of their Operation in Respect of Place and
(T Clark Edinburgh 1880) (translation with notes by William Guthrie) (henceforth Sav
(1880)) 50.

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 The Private History of International Law 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 philoso-
phy, most closely associated with Aristotle and the Stoic school,13 and in part
explains and in part reflects the fact of Roman hegemony. The only recogni-
tion 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. 14
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.15
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.16 The Roman theory of international order was simply the univer-
salization of the Roman order-a homogenization of law which renders
private international law redundant.17

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.1s The citizen, by virtue of his participation in the
Roman political system, was entitled to greater civic rights under the ius civile

13 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.
14 B Nicholas An Introduction to Roman Law (Clarendon Press Oxford 1975) (henceforth
Nicholas (1975)) 57-8.
15 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 lnterational Law (B Fellowes London 1836) (henceforth, Wheaton (1836)) 6 ff.
16 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.
17 See Phillipson (1911) 301 for an alternative view. Other authors have stressed that it is
important not to underestimate the extent of the development of international law in the ancient
world-see, eg, 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.
18 Kelly (1992) 61 ff.

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 6 International and Comparative Law Quarterly

(the civil law). Special tribunals and law, the ius gentium (the law of peoples),
were developed for cases involving non-citizens.19
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.20 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.21
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.22 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.23
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',24 reflecting
the triumph of Stoic philosophy in Roman law.25 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),26 but to the concept of a universal natural law system, has,
as we will see, been enormously influential in the development of international
law.27

19 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.

20 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.
21 Kelly (1992) 62-3; Nussbaum (1954) 13 ff. 22 Nicholas (1975) 58.
3 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.
24 Gaius 'Institutes', cited in Nicholas (1975) 54 ff. See also Juenger (2001a) 6; Neff (2003)
33-4.
25 Rommen (1936) 25 ff; Wheaton (1845) 29. 26 Nussbaum (1954) 14.
27 The ambiguity between these two senses of 'ius gentium' has been important as a justifica-
tory 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).

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 The Private History of International Law 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.28 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).29 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.30
Effectively, each person carried their own law with them.31
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 enforce-
ment.32 This idea of law as a personal attribute dominated the period between
the end of the Roman empire and the renaissance.33

28 It has been suggested that these predated the Roman world- see, eg S Kassan
'Extraterritorial Jurisdiction in the Ancient World' (1935) 29 AJIL 237.
29 Wolff (1950) 21; 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.
30 The idea of a 'personal' connection was more flexible than this might seem to imply.
Juenger (2001a) 7 points out that this extended to condoning a fictional declaration of ethnicity as
a sort of exercise of party autonomy. Bar (1892) 27 notes that even a private contract may be
analysed (and was at this time and subsequently) as a form of temporary 'subjection' to the author-
ity of a State. This form of reasoning was echoed by Grotius, and noted again by Huber-see J
Weinstein 'The Dutch Influence on the Conception of Judicial Jurisdiction in 19th Century
America' (1990) 38 Am J Comp Law 73 (henceforth Weinstein (1990)) 80-1.
31 Bar (1892) 17-21; Maine (1861) 112. Thus Westlake commented that 'Within each of the
new kingdoms, even in the same city, Roman and Lombard, Frank, Burgundian, and Goth might
all be found, each living under his own personal law, very much as the Englishman, Hindoo and
Mahometan now live together in India under their respective laws': J Westlake A Treatise on
Private International Law with principal reference to its practice in England (W Maxwell London
1880) (henceforth Westlake (1880)) 11; the passage appears to have been adapted from Wheaton
(1845) 31; see also Yntema 'The Comity Doctrine' (1966) 65 Michigan Law Rev 9 (henceforth
Yntema (1966)) 10; Phillipson (1911) 284.
32 Wolff (1950) 22.
33 Even beyond the period of the renaissance, Italian city-states resolved some practical prob-
lems 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 recipro-
cal) 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 coun-
tries disputes involving Jewish persons (eg the validity of a Jewish marriage) were tried accord-

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8 International and Comparative Law Quarterly

2. Natural law

The Italian renaissance was characterized by a revival, readoption and reinter-

pretation of classical (Roman and Greek) texts and ideas, which quickly
spread throughout Europe.34 These were reflected in a re-emergence of classi-
cal science and scientific method, and its application to understanding soci-
ety.35 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.36 The
ambition for natural law should not be exaggerated-many natural law theo-
rists 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.37 Aquinas characterized natural law as the 'participation in
the eternal law by rational creatures'38 applying 'right reason',39 in an attempt
to reconcile the fact of human law (or at least rational human law) with the
concept of universal law.40 Under this conception, the rules of natural law

ing 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 arrange-
ments. In any case, the influence of the personal law approach is still felt today, for example, in
the diverse religious laws recognized in India and in some Islamic States.
34 Often this is described as a result of the movement of scholars west because of the decline
and eventual fall in 1453 of the Byzantine empire, although much influence predates this period-
communication is more likely to be the cause than migration. See Nicholas (1975) 45 ff;
Nussbaum (1954) 54-5; Kelly (1992) 82 ff, 165 ff-who also suggests (at 86, 120), however, that
it was not the Byzantines but the Islamic expansion to the west which transmitted much of this
knowledge.
35 Neff (2003) 34. Note that 'scientific' really carries two meanings. The sense being analysed
here is the idea of deductive reasoning from first principles, rather than the inductive experimen-
tal science which founds positivist theory, which is discussed in III.A below.
36 Neff (2003) 34; Kelly (1992) 142. The form of 'natural law' which derives from the
presumption of an objective sense of reason is probably most closely related to the Roman
conception--see Kelly (1992) 57 ff.
37 Rommen (1936) 53ff. ' Aquinas, 'Summa Theologica', Ia 2ae 91 2.
39 Aquinas, 'Summa Theologica', Ia 2ae 93 3, cited in Kelly (1992) 136. The idea of 'right
reason' was again inherited from the Stoic school-see Rommen (1936) 23.
40 Shaw (2003) 21; Hall (2001) 294.

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 The Private History of International Law 9

could be derived through the application of deductive reasoning to accept

principles or axioms.41

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 sociologi-
cal and economic reasons, and more pragmatically as a result of the need for
security against invaders,42 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.43 In other areas,
whether because of differing interpretations of Roman law, or because of the
legislative actions of local sovereigns (usually also justified as 'interpreta-
tions' of Roman law), the widespread adoption of the territorial city-State as a
social organization across Europe corresponded with the growth of local
law.44 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-inter-
pretation 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)45 between natural law and
human law. Natural law provided the basic principles which any legal system

41 Note the parallel between the 'deductive' method and the idea of a 'descending' pattern of
justification in M Koskenniemi From Apology to Utopia: The Structure of International Legal
Argument (Lakimiesliton Kustannus Helsinki 1989) 41.
42 It is sometimes argued that this phenomenon was a result of the same Islamic threat which
provided the Italian renaissance with scholars from the Byzantine empire-see above n 34;
Juenger (2001a) 9. Kelly (1992) 117ff suggests that the city organization survived from the
Roman empire.
43 eg uniform commercial laws facilitated trade, culminating in the development of a lex
mercatoria which was ultimately widely accepted across Europe: see II.D below; Nussbaum
(1954) 27 ff; 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.
44 Nussbaum (1954) 41.
45 See II.B.2 above (noting that human law participated in the divine only through the appli-
cation 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 Internationa
Society (Macmillan Basingstoke 2000) (henceforth Bull (1979)) at 160 ff.

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10 International and Comparative Law Quarterly
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.46 This resolution of the problem of recon-
ciling natural law and local law created a conceptual 'gap' between human and
natural law, a move whose consequences will be discussed further below.47

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.48
However, an expansion of international trade and commerce, both between
European city-states and with the Middle East, led to an increase in the situa-
tions in which disputes would have significant foreign elements, and the diver-
sity 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,49 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 frame-
work, 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 solu
tion to problems in determining which positive law ought to be applied to
resolve a particular dispute. Private international law rules were thu
conceived of as part of the universal natural law, a part that facilitated an
supported the existence of diverse local legal systems.50 This point is wor

46 Yntema (1966) 10-11.

47 See III.C below.
48 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 Bas
Stuttgart 1977) (henceforth Gutzwiller (1977)) 292 (English summary of German text).
49 Yntema (1953) 299.
50 The first attempt at private international law rules is usually attributed to Aldricus,
Bologna in the late 12th century, who argued that the court, when faced with a dispute connec
with more than one legal system, should apply the 'better and more useful' law: see Wolff (19

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 The Private History of International Law 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 univer
sal (natural) international law system, to address the practical problems of
legal diversity.51

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.52 The dominant systems of social organization
reflected a balance and tension between these two competing ideas.53
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.54 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

22; Yntema (1966) 12; on Bologna in this period see further Kelly (1992) 120 ff. The concept that
there is a 'better' law demonstrates the natural law foundations of this approach; the comparative
nature of the test suggests a competitive improvement and development of the law towards a
universal ideal, not the existence of diverse laws: Yntema (1953) 302.
51 Kennedy argues that the distinction between international law and municipal law was itself
largely unknown to 'primitive' international law scholarship: David Kennedy 'Primitive Legal
Scholarship' (1986) 27 Harv Intl LJ 1 (henceforth Kennedy (1986)).
52 Phillipson (1911) suggests that these two types of law can also be identified in ancient Greek
(at 200) and Roman (at 284-5, 295-6) law, and thus that the statutists were merely drawing on
and expanding ancient approaches.
53 This may be seen, for example, in the development of feudalism, which was a combination
of personal and territorial rights and duties-typically the grant of land use rights in exchange for
goods or personal services (eg, farming) or an oath of personal loyalty (usually for purposes of
military service): see Yntema (1953) 302-3; Bar (1892) 22; Kelly (1992) 97; Paul (1991) 12 ff;
Lipstein (1972) 109 ff; Nussbaum (1954) 22-3.
54 The statutist approach is most closely associated with the natural law theorist, Bartolus:
see Wolff (1950) 23-5; Nicholas (1975) 47; 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 tradi-
tion: 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 inter-
pretation).

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12 International and Comparative Law Quarterly

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, analyt-
ical, 'natural' law way of determining which laws had extraterritorial effect
(and in which circumstances), and which laws were territorial in their opera-
tion. It is worth emphasizing again that this is a conception of private interna-
tional 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.55 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 time56-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.57 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.58

55 De Nova (1966) 442 ff. 56 Juenger (2001a) 13; Westlake (1858) 124.
57 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.
58 Bar (1892) argues at 33 that the statutist method fails because there is 'no real substantial
ground of classification to take up'. Bartolus himself (see n 54 above) infamously struggled to
categorize the English rule of primogeniture, according to which all property was inherited by the
first born son (see Gutzwiller (1977) 294), and was criticized for his attention to the form of word-
ing used in the expression of the rule: see Juenger (2001a) 11; Wolff (1950) 25; Bar (1892) 28;

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 The Private History of International Law 13

C. The rise of the territorial State

As we have discussed above, the statutist approach reflected the existence o

two competing theories of international legal order-personal and territoria
The theory was developed further in a flourishing France59 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.6
The French approach, developed prominently by Du Moulin,61 emphasized
personal law and considered the intention of the parties themselves as rele
vant62 (perhaps the beginning of the end of the statutist approach).63 However,
despite Du Moulin's focus on personal laws, the trend of history and (thus)
legal theory was towards territoriality, expressed through the development o
the concept of territorial sovereignty.64 More permanent, developed forms o
social organization started to become recognized as enduring territori
'States' .65

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 statu-
tory policy by De Coquille is probably broadly a contributor to this trend as well. Bar (1892) 31
points out that what is favourable for one party is clearly odious for the other, which perhaps
suggests that 'odious' and 'favourable' were intended to carry an objective, natural law meaning;
see also Yntema (1966) 14; Lipstein (1972) 119.
59 Kelly (1992) 200, 205 ff; de Nova (1966) 447 ff.
60 Far from being a coincidence, this is a key theme in the history of private international law -
see, eg Yntema (1953) 299; Wolff (1950) 20; Juenger (2001a) 13.
61 Bar (1892) 34; Westlake (1880) 16 ff; Yntema (1966) 16; Wolff (1950) 26, 29.
62 Westlake (1858) 123 suggests that this argument relied on the separation of human (custom-
ary) 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 interpreta-
tion of law is encouraged more generally by the emphasis on party intentions, and in this innova-
tion Du Moulin's approach very much laid the foundations for a modern proper law approach: see
Juenger (2001a) 14; Yntema (1953) 304-5; IV.B below.
63 Although it continued to be influential, even until the early 19th century: see S Livermore,
Dissertations on the Questions Which Arise from the Contrarity of the Positive Laws of Different
States and Nations (B Levy New Orleans 1828); Juenger (2001a) 26; Baker (1993) 466 ff; Paul
(1991) 20-1.
64 Bar (1892) 29; Shaw (2003) 21. 'Territorial sovereignty' received its first systematic analy-
sis 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.
65 Neff (2003) 38. The personal element of feudal relations (see n 53 above) was reduced as
they evolved into merely a system of land title: see Yntema (1953) 305; Westlake (1880) 12.

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14 International and Comparative Law Quarterly

D'Argentr6, writing again in the fertile private international law conditions

of 16th-century France, reflected this trend, and may be contrasted with Du
Moulin.66 Where Du Moulin argued for a presumption in favour of the classi-
fication of laws as personal, D'Argentr6 argued, more influentially, that laws
should be presumptively territorial and only exceptionally personal,67 and that
mixed statutes should also be classified based on territorial points of connec-
tion.68 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.69

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 intemrna-
tional 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,70 which
characteristically led to the solution of the problem through legal fictions.71
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 gentium72 was developed to deal with non-citizens.73 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.74 The lex merca-
toria or law merchant75 was developed in English law as part of this law of
nations.76 Eventually, many of the rules of the ius gentium were absorbed

66 Bar (1892) 35; Westlake (1880) 17; Yntema (1953) 306; Yntema (1966) 15-6; Lorenzen
(1947) 137 ff; Lipstein (1972) 120-1; Nussbaum (1954) 75.
67 Wolff (1950) 26; Juenger (2001a) 14.
68 Bar (1892) 35; Gutzwiller (1977) 296.
69 In reflecting this drift, D'Argentrd is himself also manifesting the trend away from univer-
sal, natural law solutions towards a 'positivist' dependence on the behaviour of States-see III.A
below.

70 An English jury traditionally consisted of men from near the location of the disputed act or
thing, who would therefore be expected to serve both as adjudicators and as witnesses (of the
event or the character of the disputants): see for example Baker (1993) 463; Cheshire and North
(1999) 16 ff. The English court had no power to order foreigners to serve in juries, which initially
rendered the courts powerless to deal with disputes concerning foreign property or events.
71 See Maine (1861) ch 2. For example, in a case involving property in Brussels, a claimant
might plead (and the defendant would accept) that Brussels was in London, in order that a jury
could be empanelled: see Juenger (2001a) 19; Baker (1979) 303. A typical example is Mostyn v
Fabrigas (1774) 98 Eng Rep 1021. This might also be viewed as a method of accommodation of
party autonomy. The need for this approach declined with changes to the role of juries and the
rules regarding their formation: see, eg Cheshire and North (1999) 17.
72 See II.A.2 above.
73 Baker (1993) 463 ff; Cheshire and North (1999) 16; Lipstein (1972) 126 ff.
74 Nussbaum (1954) 74.
75 See II.B.3 above.
76 Juenger (2001a) 19 ff; Shaw (2003) 19; Paul (1991) 18; Nussbaum (1954) 28; Baker (1979).

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 The Private History of International Law 15

through reforms to the common law (again much like the absorption of th
Roman ius gentium by the ius civile). The early English rules for dealing wit
international disputes were therefore justified as being part of a broader inter
national, natural law, which perhaps meant that English law was unusually
receptive (particularly through the influence of Scottish civil lawyers and
judges)77 to the next wave of private international law theory, developed in th
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 scien-
tific methodology, both in the natural sciences and the social sciences, which
would profoundly affect this reliance on natural law.78 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 prac-
tical 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.79
The application of scientific methods to the study of social sciences is
usually referred to as positivism.80s Positivism is more a methodology than a

77 A particular influence is usually attributed to Lord Mansfield, for example, in Robinson v

Bland (1760) 1 W B1 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.
78 See n 35 above.
79 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.
80 Note that the term 'positivism' carries a technical meaning in international law--see III.C
below. The term was coined by Comte in the 19th century: see A Comte 'Cours de philosophic
positive (Course in Positive Philosophy)' (1830-42); Kelly (1992) 331.

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16 International and Comparative Law Quarterly

theory,81 which, in its application to law, prescribes the study of laws as if they
were natural phenomena, to be observed and evaluated, detached from precon-
ceived ideas and dogma.82 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,83 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.84

B. Sovereignty and State practice

We have already observed (in its reflection in the statutist theories of

D'Argentrd)85 a trend towards a territorial conception of law, and the devel-
opment of the concept of sovereignty.86 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 partic-
ular a consequence of the decline in powers of the Papacy and Holy Roman
Empire, which previously acted as limitations on sovereign power,87 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 theo-
ries supporting ideas of increasingly powerful sovereignty, such as those of
Machiavelli and Hobbes.88 The concept of sovereignty was initially expressed
through the personality of the head of the State,89 but developed into the idea

81 Although of course it carries theoretical presumptions and implications, in particular

concerning epistemology and ontology-see n 83 below.
82 Neff (2003) 40-1; see also Kelly (1992) 223 ff.
83 Shaw (2003) 25; Kelly (1992) 271. This was itself borrowed from the Greek Skeptics: see
Rommen (1936) 20.
84 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.
85 See II.C above. 86 See above n 64.
87 Kelly (1992) 200; note further the r
sovereignty-see III.C (Grotius) and III.
88 Machievelli The Prince (OUP Oxf
Hobbes Leviathon (Andrew Crooke Lo
144 ff. Hobbes's emphasis on sovereign
ticism of Locke-see Rommen (1936) 82
pretation of Hobbes, under which the so
in N Malcolm Aspects of Hobbes (OUP
similarly C Covell Hobbes, Realism and
Basingstoke 2004).
89 See, eg, E de Vattel The Law of Na
Conduct and to the Affairs of Natio

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 The Private History of International Law 17

that the sovereign's legal acts, expressed as treaties, were not persona
(expressing the will of the sovereign) but attached to the territory of the Sta
(expressing the 'will' of the State), and endured and survived to bind futur
heads of State.2
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.91 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.92 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 arbi-
tration.93 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 subse-
quent conferences.94 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 conclu-

sions from observing this type of behaviour among States. We should note, of

Institution of Washington Washington 1916) (henceforth, Vattel (1758)) 137: 'the Sovereign repre-
sents 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'Etat c'est moi' (see Kelly (1992) 254).

90 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.
91 Rommen (1936) 59 ff.
92 See VI.A below; note the discussion of the history of the idea of 'autonomy' in private inter-
national 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.
93 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.
94 A system which was arguably ineffective not because of a lack of willingness on the part of
States to exercise their will, but because of the diversity of State 'wills', reflecting differing
degrees of national resistance to the forces of early 19th century liberalization-Neff (2003) 48-9;
Cassese (2001) 25 ff; Yntema (1953) 309; Nussbaum (1954) 186 ff; 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.

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18 International and Comparative Law Quarterly

course, that these observations and conclusions are entirely contingent on the
nature of the behaviour of States.95 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)96 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.97
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,98
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.99
In his writings on general law, Grotius drew on both natural and positivist
methodologies,100 arguing that the laws of nature can be derived from reflec-

95 This is not to deny that a positivist approach may tend to construct a particular type of
theory, because it inherently favours the recognition of certain types of constitutive elements (for
example treaties over custom).
96 Hall (2001) at 281 argues that the fact that 'States continued to regard international law as
real law' means that 'legal positivism involved, despite its scientific aspirations, an unscientific
attempt to make the facts fit a preconceived theory'.
97 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.
98 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)).
99 The focus below is on the famous and influential 'De lure Belli ac Pacis', or 'Of the Law of
War and Peace' (1625). However it is useful to note the contrast with Grotius's early work, 'De
Jure Praedae', or 'Of the Law of Prizes', written about 1604 and unpublished during his lifetime
(published 1950, trans by G Williams ). This early work adopted a more systematic, natural law
approach to the analysis of international law, in which (see, eg, 26) the positive law of nations was
clearly secondary to natural law.
100 See Grotius Of the Law of War and Peace (1625, trans. 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).

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 The Private History of International Law 19

tion on our nature (applying deduction and 'right reason'0 l--using again th
phrase of Aquinas) and from observing our situation (and applying induc-
tion).102 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,103 and that international law 'must have its origin in the free will of
man'.104 He identified the will and practice of States as a 'source' of law, oper
ating distinctly to natural lawl05-exposing it to the possibility of a positivis
methodology. Grotius borrowed the term ius gentium to describe this law of
nations, importing with the term its universal, natural law, legitimating impl
cations from Roman law.106 However, the concept of the law of nation
offered by Grotius was sharply distinct from the Roman and renaissance
universal, natural law concept-not a matter of natural, universal laws or cate
gories, but a matter of the will and practice of States107 (albeit a 'great societ
of States').'08 The ius gentium became, under Grotius, not the Roman (idea
'law of peoples', but a new (factual) 'law of the peoples'.109 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 distinc
tions which facilitated a positivist approach. In particular, in his analysis o
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 1648,110 often identified as the birth o
modern international law. These treaties not only signified the growth in

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

102 Grotius (1625) Prolegomena, 26: 'History in relation to our subject is useful in two ways: i
supplies both illustrations and judgements .... And judgements are not to be slighted... [for] by
no other means, in fact, is it possible to establish the law of nations.' Note the parallel between
'induction' and the idea of an 'ascending' pattern of justification in Koskenniemi (1989) 41.
103 Grotius (1625) Prolegomena para 17, 40; Kennedy (1986) 82; Westlake (1880) 1
Nussbaum (1954) 108-9; Wheaton (1836) 35 ff.
104 Grotius (1625) Prolegomena para 24; see also Yntema (1966) 20; Wheaton (1845) 91 ff.
105 Neff (2003) 37-8; see further Hochstrasser (2000) 2; Kelly (1992) 226; Kennedy (1986). No
(again) the importance of the role of 'will' in Grotius--the antithesis of the natural law identif
cation of law with the triumph of reason over will- see Rommen (1936) 41.
106 See II.A.2 above; Hershey (1912) 32; Yntema (1966) 19. Wheaton (1845) 32 ff provid
further analysis. Note the dedication of Grotius (1625) to Louis XIII of France-see Nussbau
(1954) 105.
107 Grotius (1625) Book 1 Chapter I Part XIV; see further Wheaton (1836) preface and 50 f
Note the argument in Kelly (1992) 60, 111 that this reflects an ambiguity in the Roman concep
of natural law, developed further in his discussion of Vitoria (see IV.A below) at 200 ff.
108 Grotius (1625) I Prolegomena 17; see H Bull 'The Grotian Conception of Internatioana
Society' (1966) 95 in Hedley Bull on International Society (Macmillan Basingstoke 2000) (henc
forth Bull (1966a)).
109 See Kelly (1992) 61.
110o Neff (2003) 38; Cassese (2001) 19 ff; Nussbaum (1954) 115; Hershey (1912); Wheato
(1845) 69 ff.

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20 International and Comparative Law Quarterly

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 corre-
sponded with a separation of the 'intemrnal' from the 'extemrnal', the internal
sovereign law of States (which drew on natural law) from the external inter-
national 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.'111
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),112 argued that, even though natural and
human law are distinct, since divine will determines our nature and our behav-
iour (not a Hobbesian pre-social natural anarchy),113 we can learn the divine
laws we are commanded to obey by a combination of reflection and examina-
tion of facts about ourselvesll4-in Pufendorf this tended towards introspec-
tion rather than observation.115" Spinoza argued that human and divine nature
correspond, thus rational human law is divine and universal.116 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.117
This was reflected most clearly by Vattel in the 18th century, whose writ-
ing started as a translation of the natural law theorist, Wolff,118 but instead
radically departed from any sense of natural or divine order in the laws of
nations.119 He characterized each nation as an individual, with a particular
will, not bound by the laws of any international 'society', but owing only a

111 Neff (2003) 42; contrast n 51 above. This is an idea still expressed in Art 2(7) of the United
Nations Charter.
112 Hall (2001) 274; Yntema (1966) 30; Bull (1966a) 111 ff; Hershey (1912) 33 ff.
113 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).
114 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.
115 Nussbaum (1954) 147 ff; Wheaton (1845) 88 ff. Wheaton suggests an even stronger natural
law affiliation, arguing at 89 that Pufendorf 'professes to follow the method of the geometers'. On
the other hand, (at 93) he recognizes a more positivist method behind Pufendorf's definition of
law as necessarily 'emanating from a superior'.
116 Kelly (1992) 224; Nussbaum (1954) 146-7.
117 See Wheaton (1845) 100.
Is See IV.A below.
119 Vattel (1758); Shaw (2003) 25-6; Hochstrasser (2000) 177 ff; Nussbaum (1954) 156 ff;
Hershey (1912) 38; Wheaton (1845) 182 ff; Ehrlich (1962) 235 ff.

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 The Private History of International Law 21

duty to itself for its own fulfilment, to act according to its own conscience.120
He argued that each nation had sovereign equality, meaning equality in its
formal legal status and entitlements in international law,121 (dubiously) claim-
ing that 'strength or weakness, in this case, counts for nothing'.122 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'.123
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.124 Just as we have
observed above that in practice the behaviour of States emphasized their inde-
pendence and sovereign (particularly territorial)125 power, positivist interna-
tional law was conceived as merely a reflection of the actions of States, as
existing purely 'between' States and not 'above' them.126 The terminology
reflects this change-instead of the 'law of nations', the positivist Bentham
adopted the term 'international' law.127 Even customary international law was
(paradoxically) reconceived as a form of 'implied consent'.128 This reconcep-

120 Hochstrasser (2000) 179; Bull (1966a); Wheaton (1845) 186 ff.
121 Neff (2003) 42; Vattel (1758) 137: 'nature has established a perfect equality of rights among
independent Nations. In consequence, no one of them may justly claim to be superior to the others.
All the attributes which one possesses in virtue of its freedom and independence are possessed
equally by the others.'
122 Vattel (1758) 8. This account borrowed from the way Hobbes had characterized life for indi-
viduals 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.
123 Vattel (1758) 7.
124 Cassese (2001) 10 ff.
125 See, eg Vattel (1758) 138: 'the public ownership possessed by the Nation is full and
absolute, since there is no authority on earth which can impose limitations upon it.' Note that
despite Vattel's voluntary idea of international law, he does maintain, relying on a strongly terri-
torial 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.'
126 Neff (2003) 38-42; Cassese (2001) 5 ff.
127 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 ofl International Law (OUP Oxford 2004) (henceforth, Janis (2004))
I ff.
128 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)) prole-
gomena, 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.

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22 International and Comparative Law Quarterly

tualization transformed the study of international law, which became by the

19th century an exercise in collating and describing (and, arguably, justifying)
State practice,129 rather than theorizing about a universal international legal
system.130
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.131 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.132 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 compati-
ble 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'.133
It is perhaps unclear whether this increased respect for the internal diver-
sity 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.134 What is clear is that this universalizing mini-
mal model of international law may be contrasted with international law both

129 Following Bentham's advocacy of an 'expository' study of law: see Bentham A Fragment
on Government (CUP Cambridge 1988 1776)-see Kelly (1992) 287 ff. Note also Bentham's
famous rejection of natural law: '"Natural rights" is simple nonsense; "natural and imprescriptible
rights", rhetorical nonsense-nonsense upon stilts'--'Anarchical Fallacies' (1816) Art II (cited in
Kelly (1992) 276).
130 Neff (2003) 43-4; Shaw (2003) 28-9; Nussbaum (1954) 135, 165 ff (discussing the empha-
sis 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 exist-
ing power relationships and endeavours to translate them into legal rules'). A particularly influ-
ential example was Wheaton (1836)-see discussion in Janis (2004) 44 ff.
131 See discussion in 'Academic Workshop: Should we continue to distinguish betweeen public
and private international law' (1985) 79 Am Soc IL Proc 352. For a critical discussion of the
(often neglected) history of international law in the late 19th century (real or constructed) see
Kennedy (1996); Koskenniemi (2002).
132 See, eg Nussbaum (1954) 234.
133 Hochstrasser (2000) 181.
134 Nussbaum (1954) 194 ff; Hershey (1912) 49 ff.

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 The Private History of International Law 23

before this period and after. Before, international law openly regulated matter
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 engag
with the domestic domain through the adoption of substantive norms such a
human rights, again using exclusionary strategies to enforce these norms
(declaring uncooperative States as rogue or outlaw States).135

D. The private international law implications of positivist international law

Grotius did not directly address questions of private international law.136 Th

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 change
with the move towards the positivist theory of international law. While advo
cates of the statutist approach argued that private international law rules wer
part of natural law (hence part of a single universal legal order which encom
passed all international law), a positivist approach viewed private internation
law rules as simply one implication of the fundamental (voluntarist) concept
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 concep-
tions of sovereignty, and a strong (but problematic) boundary between the
internal and external aspect of a State.137 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 inter-
national elements--a difficulty which we will see is reflected in the problem-
atic development of private international law theory. The conceptualization by
Bentham of the law of nations as 'international' law led to the gradual exclu-
sion 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.138 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.139

135 See generally G Simpson Great Powers and Outlaw States: Unequal Sovereigns in the
International Legal Order (CUP Cambridge 2004).
136 Yntema (1966) 20. This is despite attempts to imply or construct rules of private interna-
tional law from Grotius's writings-see Westlake (1880) 20-1.
137 See III.C above.
138 See III.D above; Bentham Introduction to the Priciples of Morals and Legislation
(Clarendon Press Oxford 1996 1780) ch 17, XXV; Janis (2004) 24. See further Kennedy (1996)
409-10.
139 See VI.A below. In the 19th century in particular international law arguably became a tool

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24 International and Comparative Law Quarterly

Secondly, under the positivist approach, part of the purpose which interna-
tional law serves is to demarcate this imaginary boundary, by limiting inter-
ference 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.140 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.141

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 interna-
tional law.142 This unification, however, did not exclude the continued exis-
tence of individualist provinces with diverse legal and cultural history.143
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.144 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

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 famil-
iar) 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 devel-
oping world: Neff (2003) 45; Nussbaum (1954) 203 ff, 210 ff.
140 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).
141 It is important to note that these are not 'positivist' (in the general sense) theories of private
international law, but theories of private international law which are the consequence of the 'posi-
tivist' account of international law, outlined in III.C above. There would be a 'positivist' (in the
general sense) revolution in private international law, but only in the twentieth century, most
prominently in the United States: see, eg Cheshire and North (1999) 23 ff; Collier (2001) 383 ff.
142 See III.C above.
143 Yntema (1966) 17 ff; Weinstein (1990) 97 ff; Paul (1991) 15; Lorenzen (1947) 138.
144 Yntema (1953) 299 ff. Note discussion in Savigny (1880) 65.

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 The Private History of International Law 25

school were the father and son, Paul Voet145 and John Voet.146 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',147
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',148 arguably embodies the difficulty and even
the artificiality of characterizing private international law in the positivist divi-
sion 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.149 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 universal-
ism in private international law, discussed below.150
The most influential writer from this period is another Dutch theorist,
Huber, writing in the late 17th century.'51 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 territo-
rial sovereignty, he attempted to crystallize its implications in a system of
private international law.152
According to Huber, three logical consequences followed from the accep-
tance of territorial sovereignty.153 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.154 Thirdly, each State 'will so act by way of comity'"55 to

145 Yntema (1966) 22 ff; Paul (1991) 15. 146 Yntema (1966) 23-4.
147 Bar (1892) 38; Yntema (1966) 23. On this problematic concept see further Paul (1991), who
includes a particularly detailed analysis of the approach(es) to comity in the United States; 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.
148 Hilton v Guyot (1895) 159 US 113 at 163-4. 149 Bar(1892) 39.
150 See VI.A below; Nussbaum (1954) 141-2; de Nova (1966) 449.
151 See generally Lipstein (1992) 121 ff; Davies (1937); Juenger (2001a); Lorenzen (1947) ch
6. A copy and translation of Huber's 'De Conflictu Legum' is annexed to this chapter in Lorenzen.
152 Bar (1892) 38; Westlake (1880) 22; Yntema (1966) 25 ff.
153 Wolff (1950) 27; Yntema (1953) 306.
154 These first two points are in fact no more than a re-Statement of the statutist theory in respect
of those laws classified as 'territorial' -Huber's approach is a more incremental change from the
statutist theory than is often suggested.
155 See n 151 above. Note the ambiguity of Huber's 'will so act', which may be a description
of or a constraint on State practice.

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26 International and Comparative Law Quarterly

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 prej-
udiced, 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,156 reflected general international practice,
and were accepted based on the 'tacit consent' of nations.157 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')'58 clearly reflects the foundations of his approach in State territorial
sovereignty.159 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 discre-
tionary. However, the content of his third rule, in its deference to the prob-
lematic concept of comity, made the discretionary exercise of State will
central to private international law.160

2. Story

Huber's approach was advocated to and adapted for the English-speaking

world by Story.161 It is thus not surprising that Story shares Huber's ambigu-

156 It might be argued that they were implied by Dutch commercial needs in particular.
157 See n 151 above; Juenger (2001a) 17. Note the correspondence of this idea with the use of
'tacit consent' to found international customary law as part of a positivist 'will-based' theory of
international law - see III.C above.
158 Juenger(2001a) 16.
159 See Davies (1937) 58 ff; de Nova (1966) 449 ff.
160 See Juenger (2001a) 17-18; Wolff (1950) 28, 30, 34. In its reliance on discretionary
'comity' as the solution to 'conflicts of law', in an attempt to reconcile sovereignty with the appli-
cation of foreign law by a court, the Dutch school incidentally implied a positivist methodology
for the study of private international law. If foreign law is applied purely as a matter of discretion,
the only possible way to study it and formulate more detailed 'rules' is to examine the practice of
States, and generate rules by induction: see Bar (1892) 43; cf III.A n 102 above.
161 J Story Commentaries on the Conflict of Laws (Little Brown Boston Mass 1834) (henceforth
Story (1834)); 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.

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 The Private History of International Law 27
ity towards the question of whether private international law is part of national
or international law.162

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.163 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'.164 Certainly, there are elements in Story's legal
reasoning which reflect a natural-law-inspired internationalism.165
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.166 His seminal
'Commentaries on the Conflict of Laws' of 1834167 did not include much by
way of general principle,168 or even a great deal of historical or theoretical
discussion, but instead provided a huge ('scientifically' structured and inter-
national)169 survey and analysis of private international law cases, examining
the law as it existed, and reasoning by induction from these cases to rules.170

162 Tetley describes this as Story's acceptance of the two 'hostile' concepts of natural law and
the liberal social contract: see W Tetley 'A Canadian Looks at American Conflict of Law Theory
and Practice, Especially in Light of the American Legal and Social Systems (Corrective vs
Distributive Justice)' (1999) 38 Columbia J Transnational Law 299 at 308; see similarly
Wardaugh (1989).
163 See argument in James v Allen 1 Dall 188 (Pa 1786); Millar v Hall 1 Dall 229 (Pa 1788);
Camp v Lockwood 1 Dall 393 (Pa 1788); 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 ofLaws, International and
InterState (Nijhoff The Hague 1972) 5.
164 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 distin-
guish betweeen public and private international law' (1985) 79 Am Soc IL Proc at 353 ff.
165 See Wardaugh (1989). Story was influenced by Pufendorf, and by the natural law philoso-
pher William Paley, who was himself heavily influenced by Pufendorf-see III.C above. Story's
natural law philosophy is most clearly set out in his (anonymous) article entitled 'Natural law' in
Francis Lieber's Encyclopaedia Americana (Carey, Lea & Carey Philadelphia 1836)-see
Wardaugh (1989) 308 ff.
166 Janis (2004) asks (at 23-4), 'Could it be that one reason why no [treatise on conflict of laws]
existed [before Story] was that heretofore, in Blackstone's fashion, the law of nations had been
comprehended in such a way as to encompass some or all of the problems Story addressed under
the rubric 'conflict of laws'?' See III.C above,
167 The reference to 'conflict of laws' in the title again demonstrates the influence of Huber-
although Story also invented the term 'private international law' in the Commentaries.
168 What was included was arguably just a restatement of Huber; see Lipstein (1972) 130 ff; Bar
(1892) 46.
169 See Baker (1993) 482 ff, 490 ff.
170 Wolff (1950) 33; Bar (1892) 47; de Nova (1966) 470. This approach was particularly influ-
ential 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

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28 International and Comparative Law Quarterly

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',171 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'.172
This inconsistency in Story's approach is yet again a consequence of the
problem of how to characterize private international law in the artificial divi-
sion 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',173 and what has been described as his
'bizarre syncretism' of (universal) natural law theories and (national) liberal
rights-based theories.174 This uncertainty is reflected in Story's argument that
acts of State sovereignty create rights,175 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'.176
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 exam-
ining 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 form-
ing its own rules, only that foreign practice can never be determinative or even
constitutive of the private international rules applicable in a State.

particularly the practice of referring to foreign sources, as later authors merely cited Story's own
work rather than engage in a comparative analysis.
171 Story (1834) 20; Born (1996) 547 ff; Collier (2001) 378. 172 Story (1834) 23.
173 See III.D.1 above. 174 Wardhaugh (1989) 308.
175 It is not entirely clear whether Story was committed to the idea of 'vested rights', at least
the sense later adopted by Dicey (see III.D.4 below), although it is arguably implicit in Huber
third rule (see III.D.1 above); Baker (1993) 503 ff. Story's approach to conflicts did emphasiz
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
guardians of contractual entitlements and proprietary interests' (476), and that his private intern
tional law work 'is best characterized as a heuristic, constitutional essay on the correlative scop
of private and public sovereignty' (488).
176 Story (1834) 35; Born (1996) 549. Note the argument in Baker (1993) 459 tha
'Manipulating the concept of comity by emphasizing the fiction of willing ratification..,. helpe
Story reconcile popular sovereignty with principles of international law derived from an older
natural-law tradition'; cf IV.A below.

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 The Private History of International Law 29

3. Westlake

The influence of positivist international law theory on private international

law was carried further by Westlake.177 Westlake's position as a positivist
is made very clear, in expressly rejecting natural law as a basis for the study
of law,178 suggesting that students have been 'cheated by the empty asser-
tion of universal agreement',179 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'.180

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'.'81 Although
Westlake was praised for introducing English private international law to
continental theory, and his first edition showed the influence of Savigny,182 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.'183 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 prac-
tical problem of adapting the legal categories used by continental authors for
use in respect of the common law.184
Westlake rejected Huber's addition of comity to the Grotian model, argu-
ing that 'comity might be a reason for receiving any rules on this subject, but
could hardly point out which to receive'.185 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

177 See Wardhaugh (1989) 321 ff.

178 Westlake (1880) 2.
179 ibid vi.
180 ibid 16.
181 Westlake (1858) iii; id (1880) 4ff.
182 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.
183 Note the change in title from Westlake (1858) ('A Treatise on Private International Law or
The Conflict of Laws with principal reference to its practice in the English and other cognate
systems of jurisprudence') to Westlake (1880) ('A Treatise on Private International Law with
principal reference to its practice in England'). With the development of English private interna-
tional law between these and subsequent editions, Westlake increasingly focused on English cases
to the exclusion of foreign judgments and jurists.
184 Westlake (1858) iv; note also that this anticipates Kahn's arguments in VI.A below. An
additional argument, also discussed in VI.A below, points to the increasing 'completeness' of the
English legal system, removing the need for references to foreign legal jurisprudence in the devel-
opment of the English law.
185 Westlake (1858) 149.

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30 International and Comparative Law Quarterly

understood, like all law, as commanded by the local sovereign186 (consistent

with territorial sovereignty).187
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,188 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 commandl89 are 'by comity, if you please, though it is a comity
almost demanded by a sentiment of justice, treated as valid everywhere'.190
Although Westlake clearly emphasizes a national conception of private inter-
national law, the idea of comity 'almost demanded' once again reflects the
difficulty of characterizing private international law within the national-inter-
national 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.191 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.192 Indeed, like
Westlake, Dicey argued that international law, in the absence of a sovereign
binding authority, is not strictly law.193 Adopting the positivist methodology,
Dicey inductively derived English private international law rules from the

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

187 Westlake (1858) 128. Note however that Westlake does not appear to apply this characteri-
zation to the international sphere in his later writings on international law, arguing that interna-
tional law only required a 'society of States' - Westlake, 'Chapters on the Principles of
International Law' (1894); see Koskenniemi (2002) 48 ff.
188 Westlake (1858) 131. It should be pointed out that this argument seems to beg the question,
unless by power Westlake means material power and not legal authority, in which case it becomes
a legitimisation of force. Note that it echoes John Voet, and also Cocceji's argument in the 17th
century -see Gutzwiller (1977) 301.
189 Echoing the idea of 'vested rights' implicit in Huber's third rule and arguably in Story and
Dicey (see III.D.4 below).
190 Westlake (1858) 154, emphasis in original.
191 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.
192 AV Dicey (1896); still reflected in Dicey and Morris (2000) 4; see VI.A below.
193 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).

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 The Private History of International Law 31
(almost exclusively) English cases he examined, and presented these almost as
if they were a set of sovereign commands.194 While Dicey avowedly rejected
comity as a foundation for private international law (on the grounds of its
uncertainty),195 he did adopt the idea of 'vested rights' from Story and from
Huber's third rule.196 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 interna-
tional law, its positivist form and methodology so embedded in the conscious-
ness of the English private international lawyer that it is itself 'tantamount to
being a source of law'.197

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.198 Its evolution has tracked a path away
from dependence on religious foundations,199 towards expression as a conse-
quence of some sort of universal human quality, usually articulated in terms of
reason or rationality,200 or as an aspect of a universal human society.201
The 18th-century enlightenment may be identified as the high point of the
rationalist natural law approach to international law.202 Wolff, perhaps

194 Perhaps drawing on the late 19th-century codification trend: see Morse (2002) 278 ff; V.B
below.
195 Dicey (1896) 10.
196 See III.D. 1, III.D.2 above-although note that Dicey's use of 'vested rights' arguably differs
from that of Story. On 'vested rights' see Born (1996) 616 ff; Cheshire and North (1999) 20-2;
Yntema (1953) 308; Paul (1991) 23.
197 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.
198 Neff (2003) 46; Hall (2001). For a more critical view of this 'conventional story' see
Kennedy (1996); Koskenniemi (2002). Koskenniemi (1989) 41 argues that the structure of inter-
national legal argument may be viewed as a fundamentally indeterminate contest between ascend-
ing and descending modes of argument-these may be compared with positivist and natural law
approaches (see n 41 and n 102 above).
199 Hochstrasser (2000), at 4, points out that 'Natural law theories before the 17th century were
dominanted by a principle of theistic origins--that God was the source of all laws perceived as
natural by human reason'.
200 See Rommen (1936) ch IV.
201 Thus (in the 16th century) Vitoria and (in the 17th century) Suarez argued (following Plato)
that political society is the natural state of human beings, which includes an international society,
with its own authority and laws which establish the rights and duties of persons and States
(referred to as the ius gentium), which (as universal) included and gave rights to non-Europeans:
see Vitoria, 'De Indis' (1539); Suarez, 'On Laws and God the Lawgiver' (1612); Shaw (2003) 22;
Kelly (1992) 170; Kennedy (1986); Nussbaum (1954) 79 ff.
202 Hall (2001); Neff (2003) 38; Hochstrasser (2000) 150 ff; Kelly (1992) 260 ff.

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32 International and Comparative Law Quarterly

unsurprisingly given that he was also a mathematician, took a rationalist deduc-

tive approach to the study of law,203 rejecting the Grotian characterization of
intemrnational law as voluntary, on the basis that 'the law of nations is originally
nothing except the law of nature applied to nations'.204 Influenced by Leibniz,
who applied mathematical methods and a concept of universal reason to derive
a system of ethics,205 Wolff argued that 'ideal' or 'moral' laws, the laws we
ought to have, could be identified by the exercise of human reason indepen-
dently of either divine revelation or practical observation.206 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.207 We have noted the positivist character of
Vattel's reinterpretation of Wolff,208 which replaced his notion of reason with
the voluntarist concept of will, substituting Wolff's 'quasi-agreement'209 with
a concept of intemrnational law as agreement. The natural law tradition contin-
ued, 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).210 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.211
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 univer-
sal 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'.212 Put another way, 'the universal law was law for individuals no less

203 See III.A above.

204 Wolff (1749) 9; see Nussbaum (1954) 150; Wheaton (1845) 180 ff; Wardhaugh (1989) 327
ff. A different interpretation is suggested by Hershey (1912) 37.
205 Neff (2003) 38-9; Hochstrasser (2000) 72 ff; Wheaton (1845) 176; Wardhaugh (1989)
327-8.
206 Hochstrasser (2000) 165 ff. 207 See Hochstrasser (2000) 178-9; Kelly (1992) 299.
208 See III.C above. 209 Wolff (1749) prolegomena, 12.
210 Kant Groundwork for the Metaphysics of Morals (trans 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.
211 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.
212 Blackstone 'Commentaries on the Law of England' vol IV (John Exshaw Dublin 1765-9)
ch 5 (emphasis added); see Janis (2004) 10 ff.

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 The Private History of International Law 33

than for States'.213 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',214 and which also includes analysis of rules of private international
law as part of international law.215 By 1866, the analysis of private interna-
tional law in Wheaton's text was based on the view that it derived 'only from
considerations of utility and the mutual convenience of States'.216
One further way in which natural law theory survived the apparent domi-
nance of positivism in the 18th and 19th centuries217 was by using the formal-
ism of the positivist approach to cloak itself.218 For example, an argument
about human rights would be hidden behind a (fictional)219 justification that
they were part of a social contract, the product of an exercise of will by indi-
viduals in a society.220 Thus, the foundation of liberal democracy, its claim to
reflect individual freedom, arguably depends on 'the redescription of natural
law as natural rights',221 a natural law 'creation myth'.222 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

213 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.
214 Wheaton (1836) 54.
215 ibid 136 ff. The personal relationship between Wheaton (official Reporter of the decisions
of the Supreme Court) and Justice Story may have been influential in the development of these
ideas: see G Dunne Justice Joseph Story and the Rise of the Supreme Court (Simon & Schuster
New York 1970) 200.
216 Wheaton Elements ofl International Law (8th edn Sampson Low London 1866) 112.
217 Wolff (1950) 33; Kennedy (1996); Koskenniemi (2002).
218 See Hall (2001) 273. Hall alternatively (at 276) characterizes this as 'the politicization of
Enlightenment naturalism into radical political ideology'.
219 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).
220 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.
221 Hochstrasser (2000) 5; see also Shaw (2003) 26.
222 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).

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34 International and Comparative Law Quarterly

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.223 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,224 and he
is a leading figure of the 'Historical School of Jurisprudence' (largely the appli-
cation of Hegelian philosophy to jurisprudence).225 However, his approach to
private international law was less influenced by historical concemrns 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 sovereignty226 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,227 a
'community of law among independent States'.228 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.229 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'.230 He
also rejected the focus on the rights of the parties in Story and Huber (later
expressed as 'vested rights' by Dicey),231 characterizing this argument as 'a
complete circle'.232

223 This is unsurprising given the pre-eminence he gave to Roman law. It is interesting to note that
Savigny was writing in the context of the customs union which preceded German unification: another
context of diversity within a unified system--see II.C, III.D.1 above; Nussbaum (1954) 192 ff.
224 See K Nadelmann 'Joseph Story's Contribution to American Conflicts Law: A Comment'
(1961) Am J Legal Hist 230 at 249.
225 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 rejec-
tion of Hegel's idealism. See V.A below.
226 Savigny (1880) 68; Wolff (1950) 35-6.
227 Bar (1892) 55 describes Savigny's approach in a way which emphasizes its natural law
origins; see also Lipstein (1972) 133 ff; A Nussbaum 'Rise and Decline of the Law-of-Nations
Doctrine in the Conflict of Laws' (1942) 42 Columbia LR 189 (henceforth, Nussbaum (1942)),
191 ff-but note (at 196) Nussbaum's argument that Savigny was not visualising the sort of inter-
national community posited by Wolff.
228 Savigny (1880) 71; de Nova (1966) 459 ff.
229 Perhaps positing an international system of regulation as a counter to the growth of global
liberalism-see VI.A below. See also discussion in M Reimann 'Savigny's Triumph? Choice of
Law in Contracts Cases at the Close of the Twentieth Century' (1999) 39 Virginia J of Intl Law
571 (henceforth, Reimann (1999)) 599 ff.
230 Savigny (1880) 140-2. Although at 48 he does appear to suggest that the statutist method-
ology (fixing the limits of each law) would give the same results as his approach (fixing the law
of each legal relation) in any event. 231 See III.D.4 above.
232 Savigny (1880) 147; see also Castel (1994) 29; Collier (2001) 381. The p

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 The Private History of International Law 35

Accepting the centrality of the legal relation, the role of private interna-
tional law becomes finding the law to which each relation 'belongs', to 'ascer-
tain the seat (the home) of every legal relation'.233 The bulk of Savigny's
writing is an examination of practically each known type of legal relation, t
decide what rule should be used to allocate it to a legal system.234 He argue
that there must be a single 'proper' law for each relation-on the grounds tha
otherwise the equality of sovereigns would be violated. The sorts of connec
tions which would be relevant considerations show the influence of his accep
tance of territorial sovereignty- Savigny rejected the 'personal'
characteristics of the parties, favouring the 'location' of an event or relation-
ship, 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.235
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.236 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 (volun-
tary) 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.237
Savigny did recognize some exceptions to the universality of this
system.238 He acknowledged party intentions as an important connecting
factor.239 He accepted that the forum should govern the law of procedure.240

idea of vested rights seems inconsistent with the obvious logical flaw that Savigny points out-
that for rights to 'vest' you must have already determined which legal system applies, hence the
idea is circular. Perhaps the reason for its popularity is that whether or not it is circular depends
on your concept of law. If you adopt a legal positivist position, and 'rights' exist only when
enforced by a legal system, the idea of 'vested rights' is circular, if not nonsensical. If, however,
you adopt a natural law position, rights exist at the time an act or event occurs-according to
natural law, not the law of any actual legal system-and there is an obligation on a legal system
to recognize them. Such rights may rest on a (natural or international law) claim about the
supreme territorial sovereignty of each State-such as that made by Huber. The attachment of
Huber and even Dicey to this position shows a closer affinity to natural law theory than is usually
recognized.
233 Savigny (1880) 140; Reimann (1999) 594 ff. 234 Wolff (1950) 36.
235 Juenger (2001a) 33; Yntema (1953) 311. 236 Yntema (1953) 309; Paul (1991) 29 ff.
237 See III.D.1 above; Wolff (1950) 35; Savigny (1880) 51 (Guthrie note), 75-6 (Guthrie note);
Paul (1991) 29-30.
238 Savigny (1880) 144-7.
239 Although arguably the dominance of liberal theory (and its natural law foundations--see
IV.A above) means that this would not have appeared to Savigny to undermine the universal or
natural law character of his approach.
240 Westlake (1858) 158 interestingly explains the fact that procedure is governed by forum law
by characterizing procedural rules as commands issued to the judge, not the individual.

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36 International and Comparative Law Quarterly

He also recognized the existence of mandatory laws within a forum State,

which the judge must apply regardless of choice of law rules. Savigny char-
acterized 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,241 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'.242
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',243 from the 'idea of an inter-
national community of law which restricts all territorial laws, and defines their
competency'.244 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',245 but 'limitations belonging to
the law of nations'.246 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.247 Bar argued, however, that this diversity
of State practice ought to be characterized largely as a series of 'errors and
blunders'.248 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.249 It is

241 Savigny (1880) 76 ff; see also Guthrie's note on the uncertainty of defining 'public policy'
in practice at 81-4. Bar (1892) 65 accepts that 'owing to the far-reaching differences in the moral
conceptions of different nations and States, there must be gaps in the international community of
law', but advocates a narrow public policy exception for the reason of its potential uncertainty-
only immoral legal relations to be realised in the forum territory can be disapplied under forum
public policy; see further Savigny (1880) 84 (Guthrie note).
242 Savigny (1880) 80; de Nova (1966) 469 ff. This is of course the opposite of what actually
happened in the 19th century-see V.B below. This 'progressive' view of history again shows the
influence of Hegel on Savigny: see V.A below; Savigny (1880) 57-'the positive law itself has
its seat in the people as a great natural whole'; 'it is only in the State that the will of individuals
is developed into a common will, it is there only that the nation has a realized existence'.
243 Bar (1892) 77. 244 ibid 56. 245 ibid 2.
246 To apply only local law would, according to Bar, not merely lead to loss of trade, but 'would
lead in many cases to a simple denial of the rights of the foreigner, and even of the native citizen
himself, or in other words, would deprive international intercourse of all legality'--Bar (1892) 2.
Note that Bar here appears to draw upon both the language of vested rights theory (see III.D.2
above), rejected by Savigny, and a sort of natural law theory, in his claim that a direction to apply
local law would lack 'legality'. Note also the apparent influence of Mancini-see n 274 below.
247 See VI.A below. 248 Bar(1892) 3.
249 Some direct advocates of Savigny's approach who
Lawrence, Wharton, Asser, Zitelmann: see Wolff (19
ff; d'Oliveira (2002); FK Juenger 'Private International
5 King's College LJ 45 (henceforth Juenger (1994)); N
ence in the United States may also be attributed to Fiel
national law as part of a broader international law s
territorialism in Savigny's method. Field's influence is

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 The Private History of International Law 37
most apparent in the use of 'proper law'-style rules to determine the applica-
ble law of a contract or tort in many private international law systems.
However, while Savigny's methods and techniques remain popular, his under-
lying theory, with its commitment to the existence of an international commu-
nity 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

Historicism250 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 influ-
ences.251 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.252 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,253 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 nationality254 which spread
throughout Europe during the Napoleonic wars.255 These ideas may be charac-
terized as a reinterpretation of the basic concept of 'personal law'.256 Just as the

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.
250 This term has been used in a number of different senses: see Allott (2002) 332; Hershey
(1912) 34; Neff (2003) 41 ff. Neff's approach is adopted here.
251 Neff (2003) 41 ff; Shaw (2003) 28-9. A central issue of the historicist approach, which
emerges from this dualism, is that it is sometimes ambiguous about whether it is a descriptive or
normative project, whether it claims that 'progress' is inevitable or desirable. One famous instance
of this ambiguity is the problem of revolution in Marxism, which is both the inevitable result of
material historical forces, and a 'call to arms'.
252 Rommen (1936) Chapter V; see III.B above.
253 Particularly Wolff and Kant: see IV.A above; Hochstrasser (2000) 174 ff. Note however that
Kant's conception of humanity as social was a claim about rationality not historical inevitability.
254 Expressed in the French Constitution and the Code Civil of 1804. Note also the emphasis on
international law as the law of 'peoples' in the 'Project for a Declaration of the Law of Nations'
proposed by Gregoire in 1793: see Hershey (1912) 44.
255 See Nicholas (1975) 51 ff; Kelly (1992) 311 ff; Nussbaum (1954) 120.
256 See II.B.1 above.

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38 International and Comparative Law Quarterly

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.257 Thus, arguing against an individualistic
approach to human will (which, we have seen, characterizes the positivist
approach),258 Hegel argued that the individual could only achieve self-
realization, the fulfilment of their will, through a process of collective self-
realization, 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.259
This approach has a number of implications for the study of international
law.260 First, it identifies the (nation-)state as the key unit of analysis, rein-
forcing the commitment to State sovereignty under the positivist approach to
international law.261 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',262 and 'since the sover-
eignty of States is the principle governing their mutual relations, they exist to
that extent in a State of nature in relation to one another'.263 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'.264 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

257 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.
258 Rommen (1936) 119.
259 Hegel is following a line of argument developed in, for example, Kant (1785).
z6o Neff (2003) 47; Wheaton (1845) 754 ff. 261 Koskenniemi (2002) 32.
262 Hegel (1821) 366-7; see also Kelly (1992) 345-6.
263 Hegel (1821) 368. 264 ibid 367.

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 The Private History of International Law 39

support a hierarchy of the development265 and moral authority of States.26

Thus, as we have already seen,267 in the early 19th century (in particular in the
1815 'Concert of Europe') the 'great powers' of Europe felt it morally justi
fied 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.268

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 person
connections with the nation-state. This may be contrasted with the theory o
territorial sovereignty which we have seen dominates both positivis
approaches to private international law and even Savigny's more 'natur
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',269 for an international syste
(including private international law rules) founded on the concept of nationa
ity.270 Like Savigny, Mancini started from the assumption that a leg
'community of nations' existed, but with a conception of the nation as founde

265 From 'undeveloped' to 'developed' nations, from the 'third world' to the 'first world'. This
theory was expounded, for example, by Maine (1861); see Koskenniemi (2002) 75.
266 Hegel viewed war as a natural part of the resolution of the conflict of State wills - see Heg
(1821) 369. The widespread influence of the idea of a moral hierarchy may broadly be recognize
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 contem
porary American liberalism. Rommen argues, alternatively, that totalitarianism is the inevitab
consequence of the adoption of positivism-see Rommen (1936) 152. For the influence of Heg
on Marx (through Savigny) see n 225 above. Nussbaum (1954) 238 discusses the openly hierar
chical approach developed by Lorimer under this influence.
267 See III.B above.
268 Yntema (1953) 309.
269 Wolff (1950) 38; Kelly (1992) 346; Lorenzen (1947) 197 ff; Koskenniemi (2002) 66;
Nussbaum (1954) 240 ff. Mancini was the author of a wide-ranging variety of works-see E
Jayme Pasquale Stanislao Mancini (Gremer Ebelsbach 1980, in German; 1988, trans. into Itali
by Antonio Ruini) (henceforth Jayme (1980)).
270 Bar (1892) 73-4; Nussbaum (1954) 242; Nussbaum (1942) 192 ff; de Nova (1966) 464 f
It is important here to distinguish an approach based on 'nationality' from one based on 'nation
alism'--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 nationa
ity as the founding concept and the key determinant in attributing legal disputes to States. Th
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.

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40 International and Comparative Law Quarterly

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.271 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.272 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.273 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.274
Again, this must be contrasted with the way (explored above)275 in which the
positivist conception of international law led to a model of private interna-
tional 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,276 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 auton-
omy, and must be given effect internationally.277 Public laws, however, were
part of the definition of national character by a nation.278 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, partic-
ularly in France and Belgium.279

271 Wolff(1950) 38. 272 Bar (1892) 64; see II.B.1 above.
273 Juenger (2001a) 39; cf Bar (1892) (see n 246 above).
274 Note the Institut's resolution of 5 Sept 1874, para IV: The recognition of foreign laws or
rights 'could not be the consequence of simple courtesy and propriety (comitas gentium), but the
recognition and the respect of these rights on behalf of all the States must be regarded as a duty
of international justice' (trans. by author). On the role of the Institut see further Koskenniemi
(2002).
275 See III.D above. 276 See II.B above. 277 Bar (1892) 63.
278 See Bar (1892) 69 ff for criticism of the historicist school's characterization of public laws.
Bar argues at 73 that in the end it must fall back on examining the 'end and object of the law',
which Bar identifies as Savigny's approach.
279 Wolff (1950) 39.

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 The Private History of International Law 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 1865280 and, at least prior to the European Union, it was also prominent in
other European States.281 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.282 Perhaps even more signif-
icantly, and somewhat ironically given his commitment to a single interna-
tional community of law, Mancini's influence may be felt in the decline in
universality of private international law in the 19th century,283 both in a prac-
tical 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.284
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'285 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.286 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

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

281 Juenger (2001b) 64; Bar (1892) 64. 282 Wolff (1950) 38-9, 49.
283 See VI.A below.
284 Juenger (2001b) 66; Nussbaum (1954) 241-2. 285 See IV.B above.
286 Wolff (1950) 42 ff; Yntema (1966) 31; Paul (1991) 25; Juenger (1994); Wardhaugh (1989)
331; de Nova (1966) 471 ff; note the possible influence of this movement on Dicey-see n 194
above. Nussbaum (1954) 235 ff emphasizes a link between codification and the rise of positivism.

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 42 International and Comparative Law Quarterly

of public policy (or 'ordre public'),287 not in an attempt to reflect or create an

abstract legal order.288 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 Kahn289
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 univer-
sal. Without this, he argued, it is impossible for different legal systems to
apply the same rules to make the same private international law decisions.290
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,291 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.292

287 See V.B above.

288 See generally discussion in Lorenzen (1947); d'Oliveira (2002) 113.
289 Yntema (1953) 298, 307, 312; Juenger (2001b) 66; Lorenzen (1947) 115 ff; de Nova (1966)
476. Earlier work from this perspective was also done by Wiichter-see, eg de Nova (1966) 452
ff.

290 Evidence of the problems caused by a diversity of legal categories may be seen in the 'prob-
lem', 'theory' or 'device' of characterization, under which ambiguities in private international law
'categories' are arguably susceptible to being exploited, with judges interpreting cases as belong-
ing 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 diver-
sity in legal categories, but from ambiguity or flexibility in the categories themselves, within a
legal system: see for example L Collins 'Interaction Between Contract and Tort in the Conflict of
Laws' (1967) 16 ICLQ 103.
291 Wolff (1950) 11; Nussbaum (1942) 203 ff.
292 See Juenger (1994); Reimann (1999); Cheshire and North (1999) 9; Paul (1988).

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 The Private History of International Law 43

The same story may be told from a different perspective, the perspective o
the theory of international law. The influence of the natural law and historici
approaches to private international law has been vastly overshadowed by th
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.293 The positivist 'revolution' in intern
tional law led to an emphasis on State sovereignty, and a strict (albeit prob
lematic) division between the internal and external affairs of States, th
domestic and the international.294 This was strategically useful for the univer
salization 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 interna
tional society, instead conceptualizing international law as a product an
reflection of the will of individual States.295 Deference to a foreign State's
territorial sovereignty, it was argued, implied the need for private internationa
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 divi-
sion between the internal and external adopted under the positivist conceptio
of international law, the discipline of private international law became increa
ingly focused on the study of the behaviour of States, through observation o
cases. A diverse range of national responses to the problems of private inter
national law became equally legitimate or lawful, further disintegrating th
practice of private international law into distinct national disciplines, sepa
rately studying the cases of each State. This may be contrasted to the concep
tion 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
the 'private' or domestic from its domain.296 This elevation of public over
private international law is expressed in the view that '[t]he obligation to appl
public international law overrides the ordinary rules of private internationa
law',297 and that the 'principle of subordination of considerations or rules in
the sphere of conflict of laws to considerations and rules of public interna
tional law is absolute on the inter-state plane'.298

293 But see the account of the persistence of these ideas in some continental writers by
Nussbaum (1942) 194 ff; note also Paul (1988) 162; de Nova (1966) 468, 473 ff.
294 See III.C above.
295 See III.C above; Allott (2002) 331; Wolff (1950) 11.
296 See III.C above; Kennedy (1996); Paul (1991) 25. This conception also ignores local o
regional variation in the interpretation and application of public international law.
297 A Fachiri 'Recognition of Foreign Laws by Municipal Courts' (1931) 12 BYBIL 95 at 10
see further Paul (1988) 163 ff.
298 J Verzijl International Law in Historical Perspective vol 1 (A Sijthoff Leyden 1968) 191

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44 International and Comparative Law Quarterly

An economic analysis suggests yet another perspective on this story.299 The

general division between 'public' and 'private' which crystallized in the 19th
century has long been considered problematic.300 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 insu-
lated regulatory space.301 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 interna-
tional law.302 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 ideologi-
cally to obscure the operation of private power in the global political econ-
omy'.303 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 under-
standing have changed, why does this understanding continue unchallenged?

299 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.
300 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.
301 Note the famous judgment by Story (consistent with his own role in the development of
private international law-see III.D.2 above) distinguishing public and private corporations in
Trustees of Dartmouth College v Woodward (1819) 17 US 518 at 669-73; see Horwitz (1982)
1425. The connection is most obvious in the priority given to party autonomy in private interna-
tional 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.
302 Paul (1988) illustrates this through case studies at 164 ff.
303 AC Cutler 'Artifice, Ideology and Paradox: The Public/Private Distinction in International
Law' (1997) 4 Review of Intl Political Economy 261 at 279.

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 The Private History of International Law 45

The answer is that the theory of private international law as part of domes
tic law is self-perpetuating. If private international law is considered to be pa
of domestic law, it draws the boundaries of the subject at the boundary of th
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 pa
of domestic law does not merely reflect international norms (in particular, th
norm of State sovereignty), it is actively engaged in constructing internation
society according to those norms. By defining private international law as pa
of domestic law, it defines private international lawyers as domestic, not inte
national; it emphasizes their attachment to a sovereign territory. In practice
judges, academics and practitioners are required to look only at domestic case
and domestic interests in formulating, considering and evaluating private
international law decisions and rules. This conception of private internationa
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 necessaril
coherent, as it ignores the international aspects of private internation
disputes. However, the theory of private international law as discretionary
domestic law negates the possibility of reconceptualizing the subject to reflec
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 inter-
national 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 intemrna-
tional 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

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46 International and Comparative Law Quarterly

the decisions of States with respect to private international law problems as a

matter of discretionary comity. This was in part precipitated by the problem-
atic 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 rela-
tions. 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 intemrnational law as interna-
tional 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.304 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 inter-
national 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 natur
of private international law in both theory and practice.
This article is only the first step, perhaps the easiest step, in this reconsid-
eration-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

304 See II.B above.

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 The Private History of International Law 47

of public international law? What types of international norms should influ

ence private international law, and in what ways? While responses to these
questions are beyond the scope of this paper, the following brief comment
may suggest both a destination and a way forward.
An increasingly 'globalized' world requires and creates new forms of inter
national ordering, new international norms. In its combination of an intern
tional order with national regulation, private international law could directl
confront the false dichotomy of the international and the national, and provi
a method of ordering of the international system as an alternative or comple
ment to the State-based approach of public international law. The operation
uniform, internationalized rules of private international law would increase t
certainty of private international transactions and dealings. It could al
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 internationa
interactions. In so doing it would increase the effectiveness of the enforceme
of international legal rights, particularly those attributed to individuals.30
International lawyers-at least those international lawyers committed
ensuring a structured, ordered international system but not wedded to the ideas
and methods of positivist public international law-might again view privat
international law as a legitimate 'tool' of international law.

VII. CONCLUSIONS

The earliest private international law theories emerged out of classical

natural law, in particular the theory that the world reflected a sort of un
natural order, which could be used to allocate disputes between legal sy
The invention and development of the statutist approach reflected the c
ing conceptions of this legal order as personal or territorial.
These natural law ideas were affected by a positivist 'revolution' in in
tional law. Following Grotius, international law was separated from natu
and increasingly the law of nations became simply the study of the wa
actually behaved, emphasizing their sovereign will. This revolution in t
about the international order, the positivist approach to international l
reflected in private international law in two ways; first, in its justificatio
was reconceived as a voluntary deference to a foreign sovereign (rather
natural law requirement). Secondly, in its application, as private intern
law rules were conceived as a matter of (territorial, discretionary) comi
thus a part of the domestic law of each State. In the late 19th century this
tion was formally reflected in a separation of private international law

305 See further discussion in 'Academic Workshop: Should we continue to distinguish b

public and private international law' (1985) 79 ASIL Proc 352.

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48 International and Comparative Law Quarterly

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, demon-
strate 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 interna-
tional 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 'intemrnational 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 interna-
tional 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 intemrnational 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 domes-
tic 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 intemrnational 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

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 The Private History of International Law 49

society, offers the potential for a greater level of enforcement of internation

norms in the increasingly important domain of private international interac
tions. The modern metamorphosis of international norms requires a reconcep
tualization of contemporary private international law; the international law o
the past suggests a model for the way this might be pursued. A greater awar
ness of the achievements and failures of this old international law and its theo-

rists 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.

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