Differences between private and public international law
In the study of international law, a sharp distinction is usually drawn between public international law, concerned with the rights and obligations of states with respect to other states and individuals, and private international law, concerned with issues of jurisdiction, applicable law and the recognition and enforcement of foreign judgments in international private law disputes before national courts. Private international law is viewed as national law, which is and ought to be focused on resolving individual private disputes based on domestic conceptions of justice or fairness. Some acknowledgment of the international dimension of private international law problems is given through the role played by the concept of ‘comity’, but its status remains ambiguously ‘neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. In turn, public international law traditionally neglects the analysis of private international interactions and disputes, which are viewed as outside its ‘public’ and ‘state-centric’ domain. Thus, public and private international law are viewed as distinct disciplines, as two separate intellectual streams running in parallel.
Justice and the application of foreign law
If a judge were to decide to apply foreign law because it is more ‘just’ inits substantive effect, they would be substituting their own views about justice for the judgment, the collective values, embodied in the law of their state. No English judge would approach the problem in this way – although some private international law rules in the United States controversially permit exactly this, suggesting that the ‘choice of law’ rules which determine the applicable law should not be blind to the outcome of the cases to which they are applied, and thus the courts should be allowed to take into consideration the substantive outcomes of choice of law decisions. Judges are, however, supposed to apply law, not decide cases based on their intuitions. If a judge decides a case based purely on their preferred outcome, then their decision does not reflect the law, but the personal preferences and even prejudices of the judge. This is the ‘rule of the judge’, not the ‘rule of law’ – in the common law, ‘the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires’. Even in the context of amore ‘politicised’ judiciary in the US legal system, this level of discretion is still difficult to reconcile with basic ideas concerning the powers and function of the courts. This analysis suggests that the usual sense in which the word ‘justice’ isused is unable to help as a justification for choice of law rules. The idea that ‘justice’ could operate as a justification for applying foreign law seems to be question-begging – since the problem is determining which idea of ‘justice’ should be applied. The usual meaning of ‘justice’ may tell us little about choice of law rules, but choice of law rules reveal something about our ideas of justice. The application of a foreign law on the grounds of justice presupposes an underlying acceptance that the outcome determined by a foreign law and perhaps a foreign court may, depending on the circumstances, be more ‘just’ than local law. It acknowledges that the ‘just’ outcome of a claim for damages for an accident in England, governed by English substantive law, would not be the same as the ‘just’ outcome of a claim for damages for the same accident, if it occurred in a foreign territory and was thus governed by foreign law. This reveals an underlying commitment to what is referred to in this book as ‘justice pluralism’.
The underlying justification for the application of foreign law must therefore be a question of context – of determining the appropriate circumstances for the application of local or foreign standards of justice, the appropriate...
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