Joseph Story

Joseph Story (1779-1845) was one of the greatest and most influential American lawyers of all time. Both as a Supreme Court Justice and as a professor at Harvard Law School, his work and thought were, and still are, of great importance. Today’s private international law would look different without him, both in the United States and in the rest of the world. At the same time, his approach to the field cannot be properly understood unless placed within his broader work on law, and the specific American background against which it was developed

The Functionalism of Legal Origins

This article, written on request for the centennial issue of Ius Commune Europaeum, connects the economic literature on legal origins (La Porta et al) and the World Bank\u27s Doing Business reports with discussions in comparative law about the functional method. It finds that a number of parallels and similarities exist, and that much of the criticism that has been voiced against functionalism should apply, mutates mutants, also to these more recent projects. The attraction that these projects have derive not, it is argued, from their methodological sophistication, but instead from the strange lure of economics and from the ostentatious objectivity of numbers and statistics

Global Problems in Domestic Courts

We face an increasing number of problems that are essentially global in nature because they affect the world in its entirety: global cartels, climate change, crimes against humanity; to name a few. These problems require world courts, yet world courts in the institutional sense are largely lacking. Hence, domestic courts must function, effectively, as world courts. Given the unlikelihood of effective world courts in the future, our challenge is to establish under what conditions domestic courts can play this role of world courts effectively and legitimately

Legal Culture

Written for an encyclopedia on European private law, this briefarticle addresses the term legal culture, the relation between law andculture, the relevance of legal culture, legal culture in the nationaland European context, and criticism of the concept

The Functional Method of Comparative Law

The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, the functional method is a trifold misnomer: There is not one ( the ) functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework -- not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make less claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own

Dreaming Denationalized Law: Scholarship on Autonomous International Arbitration as Utopian Literature

A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term. International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not merely ornamental. Rather, they invite us to read the scholarship as utopian literature. Doing so yields unexpected insights into the state of globalised law, and the precarious place of arbitration within i

Globalizing Savigny: The State in Savigny’s Private International Law, and the Challenge of Europeanization and Globalization

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny\u27s approach will not help: While Savigny\u27s approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that we will have to think more radically about proper conflict of laws responses to globalization if we want to overcome the centrality of the state

Two Economists, Three Opinions? Economic Models for Private International Law - Cross Border Torts as Example

Many agree that private international law does a poor job of leading to good and predictable results. Can law and economics bring more scientific, objective foundations to the discipline? Economics, one may hope, can bring the conclusiveness to the field that doctrine could not. But even a fleeting review of existing studies reveals a discrepancy of views or economic approaches that mirrors the discrepancy in the traditional private international law doctrine. This article sets out to test whether different models lead to different outcomes. It makes arguments in three economic models - a private law model, an international law model, and a model combining the two. The subject area for this analysis is private international law of torts, more specifically the question of the law applicable to cross-border torts. The result is that the debate whether private international law is private law or (public) international law is replicated in the economic analysis of private international law. Rather than resolve problems of private international law, economic analysis reformulates them. This does not make economic analysis useless at all, but it puts into question its promise of objective neutral solutions