Chapter 11 - Private International Law in Context

Summary

Introduction to the Chapter

This part of the book presents a very short background to contextualization of private international law. Discussions on conceptualization of private international law have been ongoing for hundreds of years. This chapter mentions the most relevant aspects of the discussion and explains the stance taken in this book. First, the chapter focuses on legal rules and approaches in private international law ( section 11.2 ), understandings of justice in terms of private international law ( section 11.3 ), the interrelations between public and private international law ( section 11.4 ) and attempts to define the values of private international law which relate to the book’s central theme ( section 11.5. Ordre public is the concept closely related to contextualization, fluidity, local cultures and politics ( section 11.6 ). In that respect, its use becomes problematic when populisms are on the rise ( section 11.7 ).

“Rules” and “Approaches”

In many States, autonomous private international law rules are codified to varying degrees. In other States, rules are not codified but developed by courts. A group of thinkers in modern private international law suggest replacing rules with flexible “approaches”, insisting on more discretion to judges. There is also a strand of thought in the discipline that rejects the idea of rules altogether; instead, it follows a “non-law” approach. The latter strand of thought stresses the need for a political awareness that decisions in private international law are based on necessary fictions:

Private international lawyers recognize that formal conflict of laws discourse operates with fictions, and yet these fictions are necessary to make meaningful statements.

From this point of view, “marriage” is only a word before it is recognized. Nevertheless, rules include such terms as “marriage”, despite the fact that the law applicable to the relationship might lead to the result that the said legal relationship cannot be treated as a valid marriage.