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The Private History of International Law


The purpose of this article is to address two related false assumptions, or myths. The first is an assumption of public international law. It is the myth that the history of international law is one of progressive expansion, of increasing concern in public international law with matters traditionally considered private or internal to States, and that this expansion is a relatively recent phenomenon.1 The second is an assumption of private international law. It is the myth that private international law is not actually international, as it is essentially and necessarily a part of the domestic law of States.2 These assumptions, taken together, constitute the myth that public and private international law are discrete, distinct disciplines, with independent, parallel histories. This article addresses these myths through an analysis of the role played by international law theory in the history of private international law.

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M Shaw International Law (5th ednCUPCambridge2003) (henceforth, Shaw (2003)) 42–7; A Cassese International Law (OUP Oxford 2001) (henceforth, Cassese (2001)) 11–12.

JG Collier Conflict of Laws (3rd ednCUPCambridge2001) (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’

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

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 (CUPCambridge2001);

A Nussbaum The Significance of Roman Law in the History of International Law’ (1952) 100 U Pa L Rev 678.

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;

S Hall The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’ (2001) 12 EJIL 269 (henceforth Hall (2001)) 293 ff;

AE Anton The Introduction into English Practice of Continental Theories on the Conflict of Laws’ (1956) 5 ICLQ 534;

A Hershey History of International Law Since the Peace of Westphalia’ (1912) 6 AJIL 30 (henceforth, Hershey (1912)) at 55 ff.

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.

TJ Hochstrasser Natural Law Theories in the Early Enlightenment (CUPCambridge2000) 53 (henceforth Hochstrasser (2000)) 4, 9;

Following Bentham's advocacy of an ‘expository’ study of law: see Bentham A Fragment on Government (CUPCambridge1988 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).

See generally G Simpson Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUPCambridge2004).

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:

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’ (CUPCambridge1990) 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.

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.

A Smith The Wealth of Nations (PenguinLondon1999 1776).

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

See generally AC Cutler Artifice, Ideology and Paradox: The Public/Private Distinction in International Law’ (1997) 4 Review of Intl Political Economy 261;

P Zumbansen Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law’ (2004) 15 EJIL 197;

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.

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International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
  • URL: /core/journals/international-and-comparative-law-quarterly
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