Gendering Public and Private International Law: Transversal Legal Histories of the State, Market, and the Family through Women's Private Property Rights

This essay takes up Karen Knop's challenge to reconstruct the oft-made distinction between private and public law by engaging private international law (PrIL) as a “lost side of international law.”¹ To do so we interrogate the changing fortunes (literally) of women's private property rights in the long nineteenth century—a period characterized by the divestment and reinstatement of gendered rights in national law—focusing on the Nordics, Europe more broadly, and the Colonial world. Following Knop and other feminist legal scholars, and by engaging with questions of what Mariana Valverde calls “scale,”² we bring women's property rights in conversation with international law. In doing so, we point to sites of engagement where the politico-economic structures of international law are lived, negotiated, reconfigured, and made real.³ We use scale to frame and inform our analysis bringing attention to how the “small” (micro) economics and politics of everyday life, women's labor, and gendered legal concerns, underpin and are an intrinsic part of the “large-scale” structures of international law. “All scales shifts,” Mariana Valverde notes, meaning that such “processes . . . br[ing] certain phenomena into focus that had previously been blurred or pushed to the background.”⁴ Recovering matters of women's history and everyday life, which, as Knop has argued are often “hiding in plain sight,” with a focus on women's property rights, brings to the fore the critical relationship between family/household, market, and the state, and the fundamental role international law has played in implementing a specific economic vision through the organization of gendered power relations.

A Question of Scale: Reinscribing the Domestic in the Private Side of International Law

As feminist scholars have long argued, the naturalization of the private/public divide disguises the fact that the private is political. There is no polis unless the oikos sustains and embodies its realization.⁵ These dynamics become explicit in international law as seen through the lens of scale:⁶ international economic law underpins the market that is built on and sustained by material conditions within the micro-social domain of the household (including labor exploitation and unpaid domestic labor).⁷ Yet materialist feminist concerns with contractual models of family and intimate relations and their relationship to broader international economic structures are rarely the explicit focus of either mainstream international legal scholarship or feminist international legal critique.⁸ A similar absence emerges within international law and political economy scholarship, which has sought to reconfigure the relationship between the market and the state.⁹ For scholars such as Martti Koskenniemi, rights of property facilitating private enrichment abroad “began at home,”¹⁰ but this “home” is understood as the domestic state and the domestic market, rather than the domicile.

In the absence of the domestic scale (in the sense of ordinary households), theorizing the political economy of international law fails to account for a wide array of material structures underpinning the global system of capital. As Knop emphasizes, the relative unity of public and private international law prior to the late nineteenth century calls into question the contemporary dichotomy between these spheres.¹¹ It also, we argue, points to international law's complicity in cleaving the household economy from the national economy. As Knop explains, questions of marriage, family, succession, and women's civil status frequently appeared in earlier international law treatises.¹² Gradually, however, these concerns became subsumed during the long nineteenth century by the formal demarcation of PrIL and Public International Law (PIL).¹³ The “public”—the macro-economics of the polis—became celebrated as international law's space proper; the “private”—the oikos—became international law's gendered “non” space: a domestic matter with little international weight.¹⁴ International law came to operate through mutual recognition between states, reducing “the international” to commercial, diplomatic, and belligerent relations; this process cordoned off “the private-law relations that underlie and support those actions,”¹⁵ making certain forms of power and sites of male privilege invisible.

Restructuring and rescaling the private/public distinction by adopting Knop's suggestion to treat PrIL as part of the international law conversation, therefore brings the multiple contingent social and economic relations reshaping and being shaped by the state and its transnational relations back into focus. It opens new lines of exploration, particularly for histories of international law, of the ways in which the political economy of international law is intimately linked to the gendering economic subordination of women's lives and economic power.¹⁶

Gender, Property, and the Transnational State

Narrating a history of women's property rights reveals a transnational legal history of “private” regulations of the domestic sphere and the relationship these histories and spheres have to interstate legal, economic, and political transformation. Although largely absent from international legal histories of sovereignty, beginning in the eighteenth century, gendered property rights, especially the regulation of the “marital economy,” transformed European states and economies given the role of such laws in establishing the nuclear family home as a central economic sphere.¹⁷ This change also paved the way for the accumulation of women's unpaid labor within the home.¹⁸ As historians of the family Maria Ågren and Amy Erickson note, “most of the institutional framework of early modern economic life took the shape of marriage and inheritance laws.” Indeed, states “explicitly acknowledged their dependence on the marital partnership” for strategic ends: from models for state building, to economic reform, to a metaphor for the state itself.¹⁹ The mobilization of the nuclear family model and the role of women in the home, was also central to the imperial enterprise.²⁰ Intimate relations were central to grafting colonial laws onto societies with markedly different socioeconomic and juridical systems, embedding new conditions of private property ownership which reproduced the hierarchical structure of the sovereign state.²¹

Transnational legal arrangements related to cross-border marriage, succession, and contract forced states and individuals to confront national differences and frictions regarding the regulation of women's private property and were often catalysts for legal change. These encounters, Knop notes, “involved gender relations as defining of the European state's moral core for its own society.”²² PrIL questions regarding marital property rights, in particular the division between common and individual property entitlements, arose frequently.²³ In Nordic countries, women were guaranteed substantial property rights, and marital property was divided between common property and individually inherited property. The husband was entitled to manage both his wife's part of the marital common property and her individually inherited property, even though he was not legally the owner. In contrast, the English doctrine of coverture automatically vested a wife's property in her husband, rendering her “civilly dead.”²⁴ Calls for revision and reform of the English law were frequently linked to these national differences.²⁵ Writing in 1735, the anonymous author of The Hardships of the English Laws in Relation to Wives lamented the injustice of the English common law compared to other European countries:

I have been informed by Persons of great Integrity, who have long resided in Portugal . . . that a Wife in Portugal if she brought never a Farthing, has Power to dispose of half her Husband's Estate by Will; whereas a Woman by our Law alienates all her own Property so entirely by Marriage, that if she brought an hundred thousand Pounds in Money, she cannot bequeath one single Penny.²⁶

In the Nordics, foreign private law issues of marriage and marital property relations sparked efforts to unify the different national approaches in response to pressure from new transnational commercial forces.²⁷ A seemingly banal, yet crucial, example was the matter of whether a wife could “shield” her husband against creditors, creating new obstacles to interstate economic activity. Women's property rights enjoyed considerable attention in foreign private law relations, leading to new forms of contractual relations and regulation.²⁸ Reflecting on these eighteenth-century harmonizing efforts, Maria Ågren notes, “there is much to suggest that there was a common European system set up to protect women's economic interests and to restrict women as independent economic actors.”²⁹

As the nineteenth century progressed, issues of interstate women's marital property law relations became increasingly tied to the reinforcement of state sovereignty. Domestic and household relations became central to the protection of national values and traditions, evolving in parallel with novel ideals of privacy linked to notions of morality and respectability for women. PrIL cases frequently galvanized state resistance to foreign influence, particularly regarding progressive women's property rights—seen by many as a danger to the family structure in which women remained economically dependent on their husbands.³⁰ Reforms enhancing women's economic power—such as to the UK's 1882 Married Women's Property Act—were often resisted by other common law jurisdictions. Despite rising rates of wife abandonment during the nineteenth century, leaving women without matrimonial support, Canadian courts and legislators refused to follow English precedents in order to preserve the patriarchal hierarchical of the Canadian family, which was “never viewed as a partnership of equals.”³¹

States often foreclosed the possibility of foreign influence by legislating against the permissibility of foreign marriage for women.³² PrIL disputes regarding marriage increasingly arose in the context of the expanding empire, leading to new PrIL doctrinal developments. In Bethell v. Hildyard,³³ concerning the validity of the marriage between an English citizen and a Rolong woman, the English Court of Chancery rejected an inheritance claim by the deceased's only daughter on the grounds of the illegitimacy of the marriage. The marriage, conducted in accordance with Rolong customary law, was “polygamous” and therefore invalid under English law. Writing some eight years later, Dicey used the case to illustrate that PrIL doctrine would only apply if the foreign law concerned emanated from a state that has “reached a similar stage of civilisation.”³⁴ The standard of civilization in English PrIL emanating from Bethell remained in operation up until the publication of the sixth edition of Dicey's Conflict of Laws in 1949.³⁵

The principle that the husband's lex domicilii governed cross-border marriages in PrIL, similarly severed the possibility of a wife “importing” her rights and status from another jurisdiction. This approach was codified in many national jurisdictions in the latter half of the nineteenth century. Thus, when the UK law of coverture was gradually liberalized, the passing of the UK Nationality Act, obliging women to take their husband's nationality on marriage, prevented any women's property rights and entitlements emanating from more liberal jurisdictions from being effectuated. Notwithstanding the hardships incurred by women, PrIL scholarship and practice were largely agnostic to the subsequent rise of the principle of (women's) “dependent nationality” across multiple jurisdictions. The principle rested, as Knop notes “on the conviction that a family should have the same nationality and on the patriarchal notion that the husband should determine that nationality.”³⁶ The principle adversely affected not only marital property rights, but wider economic and social benefits, particularly for lower class women. Women faced deportation and even statelessness and the loss of civil rights linked to nationality. Yet, commentators stressed the necessity of the prevailing approach to matrimonial nationality for the functioning of the interstate system. In an early text on PrIL from 1923, Rend Foignet wrote, “It is in conformity with the spirit of marriage that spouses have the same nationality.” As he argued, marriage between individuals of different nationalities would produce antagonisms not only in the home, but between states themselves.³⁷

Concluding Remarks

This brief historical snapshot of women's property rights during the nineteenth century and their intersection with international law has sought to explore how a rescaling and reconfiguration of the private/public divide can generate new insights into the deeper structures of gender, capitalism, and international law. Reinscribing PrIL as part of international law's conversations reveals linkages between family, marriage, the market, and the state that are deeply implicated in trans/international governance, past and present, but which are often hidden from view. The exercise of uncovering such connections is not simply a matter of academic curiosity—feminist or not. Rather, it is imperative if international law is to address “the various, overlapping forms of subjugation of women's lives,”³⁸ and the relationship international law has played in maintaining an international economic order that has often rendered invisible and devalued the role of intimate relations in the formal economy.