Toward a Political Theory for Private International Law

Abstract

Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside these relationships. This article examines these issues from the standpoint of contractualist moral and political philosophy. How can private international law be justified from a moral point of view? The aim of this article is to show that the moral justification of private international law, in particular the law on jurisdiction and recognition and enforcement of foreign judgments, requires an evaluation of the coercive qualities of private international law. Suitably constructed moral principles, which permit reasonable restrictions on liberty, are developed.