How Comity Makes Transnationalism Work
20 Pages Posted: 13 Jan 2017 Last revised: 3 Apr 2017
Date Written: July 10, 2016
Comity is a venerable principle in the name of which national courts fine-tune the reach of national substantive law and jurisdictional rules, refrain from questioning the lawfulness of another sovereign state’s acts, and restrict themselves from issuing such judgments and orders that would amount to an unjustifiable interference. The doctrine was developed in 17th Century Netherlands with the goal of making sense of the changed normative landscape, after the consecration of the principles of territorial sovereignty and freedom from interference introduced a substantial hurdle to flourishing cross-border business transactions. In spite of a lack of scholarly attention, the doctrine of comity never disappeared from the language of the courts: in fact, it was rediscovered as a tool to help govern those situations in which cross-border elements were in need of careful treatment — to play with Philip Jessup’s words, those “actions or events that transcend national frontiers”. In this paper, we consider the meaning of the notion of comity and its value as an inherently transnational principle that touches on a number of important areas. Following Jessup’s own partition of his seminal work Transnational Law, we will consider “the universality of human problems”, the power to deal with them, and the choice of law to govern them, and illustrate how “the demands of comity” contribute to providing answers to issues such as the harmonisation of transnational normative frameworks, the allocation of regulatory authority, and the law — and administration — of jurisdiction. In doing so, we will address both domestic and international regulation and decision making. We will then reverse our perspective to show that comity is a foundational principle for transnational law by explaining that the latter cannot be detached from an understanding of the former: four centuries on, “the lesson of comity” does not cease to be decisive.
Keywords: Comity, Jessup, Transnational Law, Private International Law
JEL Classification: K10, K20, K33, K41
Suggested Citation: Suggested Citation