The Transformation of European Private International Law A Genealogy of the Family Anomaly Alberto Horst Neidhardt Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 23 October 2018. European University Institute Department of Law The Transformation of European Private International Law A Genealogy of the Family Anomaly Alberto Horst Neidhardt Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Ruth Rubio Marín, Universidad de Sevilla/EUI (Supervisor) Professor Horatia Muir Watt, Sciences Po, École de droit (External Supervisor) Professor Robert Wai, Osgoode Hall Law School Professor Kerry Rittich, University of Toronto, School of Law © Neidhardt, 2018 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes I Alberto Horst Neidhardt certify that I am the author of the work ‘The Transformation of European Private International Law, A Genealogy of the Family Anomaly’ I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of 168.993 words. Abstract This thesis originates in a ‘family anomaly’ in European private international law. Conflict experts have observed a methodological shift towards regulatory and policy considerations in transnational economic relations. Fears of the dangers of an unregulated market have generated policy-oriented rules and overriding mandatory provisions. Experts are generally supportive of this paradigm shift. They reject the view that conflict of laws consists of a set of ‘neutral’ techniques designed to protect decisional harmony and parties’ expectations, the classical objectives of private international law. Some regard this as evidence of a long-awaited ‘European Conflicts Revolution’. A paradigm shift is also occurring in the law governing cross-border family relations. Here, however, changes take the opposite direction as party autonomy and the method of recognition are being progressively constitutionalised. In contrast with cross-border economic matters, policy-oriented rules and mandatory norms evoke the ancien régime and the exceptional characterisation of family relations that became dominant in the 19th century. Autonomy and recognition are popular because they come across as technical devices that liberate individuals from conservative social forces. For some, the contemporary turn indicates an evolutionary movement from government control to self- determination, ‘from status to contract’. Rather than portraying the family anomaly as part of a methodological revolution or as an evolutionary progress, this study advances a transformative thesis. Contrary to what is assumed, this study shows that private international law does not consist of technical rules and methods that develop in isolation from cultural and political processes. Tracing a genealogy of the law governing cross-border relations from the medieval to the contemporary age indicates that private international law constitutes an instrumentum regni which is transformed by dominant ‘modes of thought’. Ideas and assumptions which prevail in legal consciousness have shaped the boundaries and functions of conflict of laws. In turn, the law governing cross-border relations has played a crucial role in articulating and consolidating sovereign power. In this light, the thesis shows that the family anomaly reflects the renaissance of ideas dating back to the age of classical legal thought, and most notably the contraposition between the family and the market, and their adaptation to a new cultural and institutional environment. It suggests the rise of a post-national institutional model which is illustrated by the profound redefinition of the way in which individuals form and dissolve civil and political bonds through conflict rules. 2 Acknowledgments Some years ago, I embarked on a journey into the unknown. Although challenging and frightening at times, undertaking a PhD has been an exhilarating and life-changing adventure. As is with my physical travels, so it has been with my intellectual ones; I would not have reached my destination without the guidance of persons gifted in equal parts with knowledge, patience and kindness. I would like to express my most sincere gratitude to Horatia and Ruth, who encouraged me to never abandon the path that my intuitions and beliefs led me to, but also made sure that the many exciting digressions of my wandering brain did not lead me astray. I would like to thank Michael, for he has equipped me with the necessary mental faculties to be able to complete my journey, the capacity to observe and to reflect, and has taught me the true meaning of the words ‘erudition’ and ‘generosity’. I take full responsibility for the mistakes and inaccuracies that can be found in this bulky work that gives an account of my adventure, including its biblical size, but the good that lies in it would not be there without their advice and unconditional support. I owe my success entirely to them. On my journey, I have had the privilege to be accompanied by many intellectual giants. I am indebted to Professor Robert Wai and to Professor Kerry Rittich for having provided invaluable comments on my work and for having accepted to take part in the thesis defence at short notice. I would like to express my deepest appreciation for the cultural and professional environment that I have found in the Law Department of the European University Institute. Professor Hans Micklitz, Professor Dennis Patterson and Professor Loïc Azoulai are among the finest and most curious minds I have come across in many years. May they continue to feed the thought of many others after mine at the EUI and elsewhere. A functioning brain would be purposeless without a beating heart. Thank you, Eleonora and Matteo, and the administrative staff of the EUI, for having dealt with the Kafkaesque procedures in which I have frequently got stuck in the past years and more recent months. I am also grateful for the beneficial visiting period in the Faculty of Law of the University of Padua and for the constructive exchanges I had there with Professor Bernardo Cortese and Professor Christian Kohler. Half-way through my journey I have had the opportunity to work for Unit C2 of DG JUST of the European Commission. Far from being an inaccessible fortress of insensitive technocrats, I have encountered in Brussels a group of individuals who, despite the immense political pressure and their vested personal interest, are still committed to realise and defend the freedom which this dissertation discusses, the liberty to move freely across geographical and jurisdictional borders. In times of great 3 political uncertainty, their ingenuity and competence, though mostly unnoticed and often insufficient to balance out the artificial, irrational and unjust obstacles to free movement faced by many European citizens and international families, give me a grain of hope that in the future, humans will never again be treated as foreign in their own lands. I would especially like to thank Dr. Sandrine Musso-van der Velde, a fellow EUI graduate, a dedicated lawyer and a passionate intellectual, for the wonderful walks and enriching conversations we shared in Rue de Luxembourg and Parc de Bruxelles. Right when I felt that my energies were drawing to an end, I have had the privilege of spending seven regenerating and fulfilling months as visiting fellow at the Law School of Sciences Po. In Paris, I have discovered an immensely rich and diverse cultural habitat and an entertaining office populated by beautiful minds who have travelled from every corner of the planet to resist political and intellectual darkness with the force of their ideas, convictions and sense of humour. I especially wish to express my gratitude to Louis, Mohammed, Bruno, Ghazal, Diego, Ishupal and, last but not least, my ‘doppelganger’ Alberto for never making me feel like a guest. I also want to thank the staff of the library of the EUI, Ruth and Machteld in particular, for their indefatigable help and for having responded positively to all my bizarre requests for ancient manuscripts and family law treatises, curiously most of them available only in one copy which is jealously guarded in some remote archive in Germany. I believe that the true value of my PhD is to be measured in terms of the friendships that now bind me to my travel companions. All those whom I have met on the way have left me with something memorable. Many have directly or indirectly contributed to the success of this journey. I want to thank Tleuzhan, Emma, Vasyl, Liam, Virginia and Marie. It has been a gratifying and unforgettable experience to speak in Venetian dialect with a Kazak, to discuss of Palestine with an Irish, to play chess on a Florentine terrace with a Ukrainian, to learn about European politics from a Canadian, to debate migration policies with a fellow Italian and to discover Florence and its surroundings with a Swiss. I also want to thank Davide, Niccolò, Koen, Marcin, Noelle, Chiara, Mariana, Nuria and Elisa.