The history of private international law is frequently told in terms of a dialectical antithesis between opposing concepts or doctrinal approaches. Historical narratives are thus employed to address presentist concerns. Those supporting one of the embattled approaches often search for historical validation of their views: the history of the field is thus told in terms of the emergence, or persistence, of a dominant concept or approach. But those who seek to escape the constraints of binary oppositions also use history, either suggesting that the time has come to move beyond such antithetical schemes, or in espousing more complex schemes of their own. History can provide them as well with examples of how such polar approaches were tried and failed; or with material supporting notions of doctrinal complexity.

Conflicts literature is ripe with aphorisms about the significance of history for our subject.1 It has even been claimed that “in private international law, history is everything.”2 Others lament – or warn – that “everything worthy of trying has been tried before, under the same or other labels.”3

It is impossible to separate Bartolus from the complex political environment in which he lived. In this world of institutional pluralism, legal scholars of his caliber were important players but they also had to constantly engage in balancing acts between competiting – and concurrent – sources of political authority and power.1 Law was not just an important tool for the exercise of power and buon governo, but an equally important currency for the legitimacy of polities and institutions.2 The fact that law was itself a plural, multidimensional stream of norms and ideas added to both its potential and the challenges faced by jurists.

Ulric Huber or Ulricus Huberus (1636–1694) was a scholar, judge, and statesman of the Dutch “Golden Age” who published widely on law and on politics, in both Latin and the vernacular.1 His work on private law has lived through in South African Roman-Dutch law, whereas his contribution to constitutional theory and public law is noted by legal historians.2 A modern authority on Roman-Dutch law even claims that “[n]ext to Hugo Grotius [Huber] was probably the greatest, as he was certainly the most prolific Dutch jurist.”3

In the preceding chapters, we had the opportunity to examine in detail Huber’s conflicts treatment and to draw connections to Huber’s overall doctrinal outlook. In the process, we have come across common perceptions, or rather misperceptions, of Huber in conflicts literature. Having established the context, we have been gradually moving towards issues more specific to a doctrinal work in the conflict of laws. Our exercise is completed in this chapter, where Huber’s doctrine is examined in the light of the basic conceptual oppositions of the conflicts discourse. Huber has been often described as a territorialist and as a unilateralist. He has also been perceived as thinking of the conflict of laws in terms of addressing or seeking to avoid a conflict between the “sovereignties” of different states. His famous three axioms are a recurring invocation in all these perceptions, as indeed is the concept of comity, with the origins of which Huber has become associated as none in classical and modern consciousness.

In almost every textbook on private international law, there is a reference to the Medieval and Early Modern jurists who, it is claimed, wrote on the conflict of laws. Such references are often very brief. Some appear to unveil the foundation stone of our whole doctrinal edifice, but many others may look and feel ornamental, of no importance to their author’s argument. What matters most is that, when viewed as a whole, these references constitute an integral aspect of our thinking about private international law – an aspect that, it will be argued in this book, is important, if neglected and often misunderstood.

Huber’s treatment of conflict issues forms, in both its versions, part of comprehensive – and systematic – doctrinal works. It must therefore be placed in that context.of this chapter examines the legal style of Huber’s conflicts treatment: the choices he made as to structure and the organization of his argument, on the one hand, and as to the use of authorities, on the other.addresses the organization of the legal subject matter within our text.examines the use of the form/substance distinction, and their corollaries. , , andaddress respectively the role of jurisdiction, party autonomy, and decisional harmony in Huber’s choice-of-law system.

This is an elaborate narrative, whose normative implications – soliciting Huber as an authority for a more vigorous pursuit of public policy – will be discussed further below.2 For the time being, it suffices to note that such allusions may tell us more about the modern preoccupations of their authors, than about Huber himself, his world, and his politics – or about how he perceived and exploited the various groups or bodies of norms (Roman law, provincial statutes, ius gentium) constituting the law of his jurisdiction.

Bartolus (or Bartolo in the vernacular) was born in either 1313 or 1314, in a village near the small town of Sassoferrato, in the March of Ancona – a territory forming part of the Papal States. He first studied law at the University of Perugia, where his most notable teacher was Cinus da Pistoia, a founding figure of the so-called School of Commentators.1 He then obtained his doctorate from Bologna in 1334, where his teachers included Oldradus da Ponte, Jacobus Buttrigarius, and Ranierus de Forlivio. After a brief judicial career in Todi and possibly Pisa, Bartolus begun teaching at Pisa in 1339 and finally joined the law faculty of Perugia in either 1342 or 1343 until his death in 1357.2 His students there included the other great Commentator Baldus de Ubaldis (1327–1400).

In 1949, the French Professor Henri Batiffol published the first edition of a treatise on private international law that was to have a long history.1

In the historical consciousness of private international lawyers, Bartolus is one of us – an illustrious ancestor. This is almost regardless of what present-day relevance his contribution is perceived to have. Occasionally, however, it has been argued that what Bartolus was doing in this text was an exercise not in the conflict of laws properly speaking, but in statutory interpretation or in the modernization of a superior body of law.

To write the intellectual history of a doctrinal field in a given period is to address a double-edged question. A period is defined by a minimum of internal coherence, as well as by its “external” differentiation from the adjacent periods. At the same time, these unifying characteristics coexist with internal divergences. The paradigm of an epoch is shaped by these defining ideas and the tensions generated, which over time give rise to a different environment and inspire new paradigms. Such a history is therefore a balancing exercise between concord and dissonance, our historical understanding inevitably coloured by the aspirations, sensibilities and tensions of subequent epochs.