Chapter 4: Pages of History: Friedrich Juenger and the Historical Consciousness of Modern Private International Law
Tradition and Innovatioin of Private International Law at the Beginning of the Third Millennium - Liber in Menmoriam of Professor Friedrich K. Juenger, Leonel Pereznieto Castro, Tullio Treves, Francesco Seatzu, eds. (Huntington, N.Y.: Juris Publishing, 2006), 81-124
44 Pages Posted: 6 Apr 2013
Date Written: 2006
This essay was written in 2004-2005 as contribution to a memorial volume on Friedrich Juenger. It attempts a critical review of Juenger's writings on the history of private international law. The essay is an early example of my broader, ongoing research, on the historiography of private international law (conflict of laws as well as international business law). I am presently revisiting much of the primary material used in this essay as a case study with broader implications on the role and uses of textbook history in the modern conflict of laws discourse (work in progress).
Friedrich Juenger's historical introduction in the 1993 textbook (Choice of Law and Multistate Justice) emanating from his 1983 Hague Academy General Course his conflicts monograph is today one of the most frequently read texts on the history of private international law. Juenger has moreover included historical references in other doctrinal writings. From a legal historian's point of view, Juenger exclusively uses secondary literature for his "textbook history". Juenger's historical narrative is important, however, in helping us understand the role of historical invocations in the doctrinal consciousness of modern private international lawyers. My essay shows how even supposedly value-neutral allusions to past doctrines and legal regimes can be used instrumentally to support present-day conflicts doctrines, methods and ideologies.
The essay is divided in two parts. The first part examines the theoretical premises of Juenger's dealings with conflicts history: namely, on the importance of history and memory in conflicts doctrine, the reliance on lawyer's legal history and the emphasis of historical narratives on the contribution of grand men, as well as on the effects of periodization in conflicts history. The second part examines Juenger's historical narrative in itself, as it spans from Antiquity and the Early Middle Ages to the statutist schools of the High Middle Ages and the Early Modern Era, up to the nineteenth-century paradigms. For each period, observations are made with regard to how Juenger is using history to fit his own doctrinal agenda (especially as he distanced himself from conflictualism in favor of substantivist approaches), as well as with a view to fitting Juenger's narrative within the dominant perceptions of the modern historical consciousness.
Keywords: Conflict of laws, private international law, Friedrich Juenger, historiography, textbook history, Friedrich Carl von Savigny, Pasquale Mancini, theory of statutes, Early Middle Ages
JEL Classification: B31, F23, B20, B15
Suggested Citation: Suggested Citation