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.C.L.Q. 2006, 55(1), 1-49
International & Comparative Law Quarterly
2006
Article
THE PRIVATE HISTORY OF INTERNATIONAL LAW
Alex Mills.
Subject: JURISPRUDENCE. Other related subjects: Conflict of laws
Keywords: Conflict of laws; Historical jurisprudence; International
law
Abstract: Explores the history of the theory of private international
law, from its early origins through ideas of positivism, natural law
and historicism. Examines the theoretical basis of certain myths
concerning public and private international law, including the notion
of them being discrete disciplines with independent histories.
*1 I. INTRODUCTION AND METHODOLOGY
The purpose of this article is to address two related false
assumptions, or myths. The first is an assumption of public
international law. It is the myth that the history of international
law is one of progressive expansion, of increasing concern in public
international law with matters traditionally considered private or
internal to States, and that this expansion is a relatively recent
phenomenon. [FN1] The second is an assumption of private international
law. It is the myth that private international law is not actually
international, as it is essentially and necessarily a part of the
domestic law of States. [FN2] These assumptions, taken together,
constitute the myth that public and private international law are
discrete, distinct disciplines, with independent, parallel histories.
This article addresses these myths through an analysis of the role
played by international law theory in the history of private
international law.
A typical history of a subject like public or private international
law is 'internal' or 'intrinsic', a history of the development of
legal doctrine and theory within the discipline. [FN3] In such a
history, theories or approaches are presented chronologically, in a
series of 'epochs' or competing 'paradigms'. The story of their
succession is told simply as a historical fact, without significant
attention *2 to contextual factors--suggesting the discipline is
propelled forwards by internal dynamics. [FN4]
The application of this historical methodology to private
international law, this 'story' of private international law, excludes
something critical. Historical study is of course necessarily limited
and selective; it is about inclusion and exclusion. The choices of
what is 'intrinsic' and what is 'extrinsic' reflect a theory of what
is important, what is relevant, and often what is valued by the
author. [FN5] This typical history of private international law
chooses to tell us only the story of private international law as the
discipline is conceived today--in English law, for example, 'that part
of the law of England which deals with cases having a foreign
element ... [meaning] a contact with some system of law other than
English law'. [FN6] This history may suffice if all that is required
is an understanding of the doctrinal origins of contemporary private
international law rules and approaches. However, this approach can
only tell a genealogical history of the contemporary form of private
international law--a discrete, coherent, autonomous, national
discipline. It does not permit an exploration of the underpinnings of
private international law, and it denies the possibility that private
international law might have been, and might be, conceived as part of
broader historical movements and a broader international system. [FN7]
This article tells another story of the history of private
international law-- the 'private' history of international norms and
private international law. It is an 'extrinsic' history of private
international law, looking at the role played by broader ideas of
international law and international order in its development, [FN8] *3
including in its early origins (section II), and through the ideas of
positivism (section III), natural law (section IV) and historicism
(section V).
The focus in this article is on the history of the theory of private
international law, as expressed through the most influential writers
and theorists in international law. [FN9] It is thus not a history of
the rules or practice of private international law, but an exploration
of the influence of different ideas of private international law as
expressed by international legal theorists, including theorists not
traditionally viewed as a part of the history of the discipline of
private international law. By exploring the intersections between the
histories of public and private international law, it challenges the
international public/private distinction, and discredits the myth that
these disciplines are necessarily independent, that their histories
run in parallel.
There are two related main reasons why it is important to tell this
story. The first is because of its explanatory value--our
understanding of public and private international law is improved by
greater insight into the way in which private international law has
developed within the context of international norms, theories and
structures of international order. Changes in private international
law rules and approaches are not arbitrary, nor do they necessarily
indicate 'progress' in the development of 'more sophisticated'
techniques, nor indeed do they indicate a 'full circle', a cyclical
history. [FN10] Instead, private international law theories, rules and
approaches are reflections of and responses to changes in their
theoretical and social context. Private international law rules and
approaches do not merely reflect, as contemporary *4 accounts might
suggest, a dialectic between public policies (such as justice,
certainty, individual autonomy) within each State. They are also
engaged in both responding to and indeed in constructing an
international order which is reflected in a set of international
norms.
The second justification for this article's history is that it
demonstrates the contingency of contemporary theories of international
law--it highlights the myths identified above. It demonstrates that
our understanding of private international law depends on broader
theoretical foundations--foundations which may shift, and which
arguably are indeed shifting. By revealing the conditional nature of
our current understanding of private international law, and the
factors on which it depends, it reopens the possibility that private
international law might be transformed as changes in those factors may
permit or require. As international law (again) becomes increasingly
concerned with the regulation of 'private' matters, it also provides
an account of a way in which international lawyers of the past thought
that this might be possible through private international law. It
therefore makes possible the revival of the idea of private
international law as a tool for international lawyers, which might
again be applied to the regulation of the international system. In
reopening the contingency of ideas of both public and private
international law (and of the validity of their distinction) it is,
therefore, a story of international private international law which
has a future--not merely an ending.
II. THE ORIGINS OF PRIVATE INTERNATIONAL LAW
This section traces the early development of ideas of private
international law, beginning with Roman law. There were no private
international law rules in wha
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