Conflict of Laws
BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, Chapter 12, Dennis Patterson, ed., Blackwell, 2010
12 Pages Posted: 16 Jan 2010
Date Written: January 14, 2010
This essay on choice of law (private international law) appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of an entry on the same topic in the first edition of the book. The essay focuses on the epic battle over the course of the last century between two very different traditions - classical choice of law, articulated most completely by Joseph Beale in the 1930s, and modernist choice of law, which inspired a massive and still controversial revolution in choice of law thinking. The essay isolates eight distinct jurisprudentially significant premises of classicism, including territorialism, a commitment to a regime of rules, and a conception of law and legal rights that I have called “vestedness.” It then discusses the modernist challenges to most, but significantly not all, of those premises. It also emphasize, however, the degree to which the eight pillars of the classical tradition are actually conceptually independent, and could, at least in principle, be mixed and matched in various combinations and in the service of very different account of choice of law enterprise. Finally, the essay turns to other debates, both within the classical and modernist traditions separately and transcending the differences between them.
Keywords: conflict of laws, choice of law, private international law, philsophy of law, legal theory, jurisprudence, territorialism, vestedness, legal pluralism, rules and standards, marriage, same-sex marriage
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