Private Law Theory

ABSTRACT
This comment on ‘Interpersonal Human Rights’ by Hanoch Dagan and Avihay Dorfman develops an interdisciplinary dialogue from the perspective of private international law (also known as Conflict of Laws). Part I identifies the theoretical framework within private international law that Dagan and Dorfman’s article is likely to connect to and those it would discount as unhelpful. I draw a parallel between the way in which Dagan and Dorfman structure the state-centric/individual-centric distinction and the way in which private international law historically drew that distinction. I suggest that ‘Interpersonal Human Rights’ connects to a nineteenth century private international law perspective that I describe and refer to elsewhere as ‘relational internationalist’. Part II brings the main analytical insights offered by Dagan and Dorfman into conversation with this “relational internationalist” perspective. Part III returns to Dagan and Dorfman’s state-centric/individual-centric distinction to suggest a possible nuance. Dagan and Dorfman rightly argue that individuals may legitimately assert claims of justice directly in relationship to the individuals they interact with, rather than to the state or via the state. But a key insight of what are called ‘conflicts justice’ theorists in private international law is that the claims individuals make to one another are informed by their respective relationship to one or several states and their familiarity with a certain culture, law, and social practice. As I discuss, private international law foresees the ability of individuals to make claims of justice to each other, but in large part insists that those claims are informed by individuals’ social, if not political, affiliations. This makes it hard to give much content to a quasi pre-political notion of universal human rights even within an individual-centered analytical framework.

Banu, Roxana, From the Law of Nations to the Private Law of Mankind (October 1, 2018) 51 Cornell Journal of International Law Online 101 (2018).

First posted 2019-04-20 06:25:49