The philosophical foundations of Private International Law
Private International Law (PIL) is seen by many as the most technical of all legal disciplines. Whereas theoretical questions and debate over the appropriate methodology tend to determine the issues addressed in the field, its philosophical underpinnings are mostly neglected. In a parallel manner, PIL plays only a minimal role in legal philosophy. Addressing and closing this gap is the aim of a new interdisciplinary project being launched by Institute Director Ralf Michaels together with Roxana Banu from Queen Mary University of London and Michael Green from William & Mary Law School.
Although PIL raises numerous philosophical questions that are not encountered in other legal disciplines, there are only few reference works that examine the philosophical basis underlying the application of foreign law by domestic courts. One reason for this is that legal philosophy typically assumes the existence of a single law – whether a universal natural law or the positive law of a State – and the plurality of laws has only recently been addressed.
A need to clarify fundamental questions
In practice, PIL is often viewed as a “reference law” that does not possess its own framework of values. Also, in PIL scholarship, basic ideas such as justice, equality and autonomy only seldom arise in discourse. Yet the treatment of different legal systems (and thus different legal cultures) that is central to the field touches upon issues whose legal-theoretical foundation requires philosophical clarification.
„Basic research on the philosophical underpinnings of PIL has diminished in recent decades. PIL and legal philosophy exist alongside one another in silence, generally free of exchange. Our aim is to revive the dialogue between the two fields.“
– Ralf Michaels –
An interdisciplinary project
A closed workshop will take place at the Institute in the fall of 2020 (as a video conference if necessary). The conference will bring together established and emerging scholars - in the fields of both law and philosophy – to explore topics situated at the intersection of PIL and philosophy. The geographic diversity of the participants spans four continents.
„PIL situates virtually every legal topic in a different, transnational and pluralistic context. It is therefore hard to comprehend why a philosophical inquiry has thus been far lacking. We seek to penetrate the long-standing isolation existing between the two disciplines and investigate the many opportunities for mutual enrichment.“
– Roxana Banu –
A pioneering publication project
The list of topics is diverse, ranging from the normative structure and coherence of PIL, to the anchoring of ordre public in constitutionalism, to core legal philosophy questions surrounding the authority and legitimacy of law. One dedicated topic of inquiry will be the problems associated with plurality and legal plurality. Also in focus is morality and justice – considering aspects such as equality and the ability to reach an accord – and globalisation.
The findings, to be published as an edited volume, will serve as more than simply a documentation of the conference proceedings. There are plans to accompany the publication of the volume with an open book launch event at the Institute. Further information about the event will be shared in the given time.
„Past synoptic works on the philosophical foundations of some area of law largely present positions that have already been well developed in the literature. But because the philosophy of law and private international law scholarship have, for so long, ignored each other's existence, this work is, by necessity, different. Its goal is to be the first step in the creation of a literature on this exceedingly rich and promising topic.“
– Michael Green –