Private Law Theory

ABSTRACT
Private international law (or conflict of laws, as it is more commonly known in the United States) is sometimes said to be – and criticized for being – detached from politics. In contrast, this chapter shows that private international law is political in both its content and functions. First, it discusses the debate over the extent and ways in which private international law is political, which are descriptive questions. Second, it assesses normative contestation among scholars regarding how, and how much, private international law should engage with the political. Third, the chapter examines efforts of interdisciplinary scholars to use political science theories and methods to shed light on the normative foundations of private international law, the determinants of private international law decision making, and the sources of cross-national variation in the rules of private international law.

The chapter proposes several avenues for further interdisciplinary scholarship on private international law. By drawing on political philosophy, scholars might achieve a better understanding of private international law’s normative foundations. Existing work using international relations theory and judicial decision-making theory to shed light on private international law decision making has been limited by its focus on US courts and on only certain types of private international law decisions. Promising next steps could include research on other types of private international law decisions in more diverse contexts, perhaps drawing on yet another branch of political science: comparative politics. In addition, work applying international relations theories of treaty negotiation and design could be extended to shed light on private international law treaties. Although interdisciplinary scholars have developed theories about private international law’s relationship to the behavior of transnational actors, economic outcomes, and the optimality of legal rules, these theories generally remain untested, creating opportunities for further empirical analysis.

Whytock, Christopher A, Politics and Private International Law (June 14, 2024) in Research Methods in Private International Law (Xandra Kramer and Laura Carballo Piñeiro eds, 2024) (https://doi.org/10.4337/9781800375536.00008), pp 19-36; UC Irvine School of Law Research Paper No 2024-14.