Dagan and Dorfman's Jus Gentium Privatum

Abstract

In their provocative essay, Interpersonal Human Rights, Dagan and Dorfman argue that when private parties from different national jurisdictions interact, their interaction is properly subject to a distinctive regime of private law they call jus gentium privatum. In this comment, I draw attention to two dimensions of the Dagan/Dorfman project. The first is internal, and involves an examination of Dagan and Dorfman’s basic argument from privity in favor of the jus gentium privatum. I suggest there is tension between their use of a formal concept of privity, on the one hand, and their theory of private law, on the other. The second dimension I explore pertains to characterization, and interrogates Dagan and Dorfman’s description of the jus gentium privatum as a regime of interpersonal human rights. I ask after what Dagan and Dorfman mean here by “interpersonal,” since the human rights duty-bearer of international law — the state — is a person, too.

Keywords: jus gentium privatum, transnational law, human rights