From Conflicts of Sovereignty to Relationships: Recovering Nineteenth Century Relational Internationalist Perspectives in Private International Law by Roxana Ioana Banu A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Roxana Banu (2016) From Conflicts of Sovereignty to Relationships: Recovering Nineteenth Century Relational Internationalist Perspectives in Private International Law Roxana Ioana Banu Doctor of Juridical Science Faculty of Law University of Toronto 2016 Abstract This thesis seeks to demonstrate that contrary to conventional histories of the discipline, 19th century writings on Private International Law included an internationalist strand that focused on the individual, rather than the state, but adopted an account of the individual as social and relationally constituted. The thesis dispels two common assumptions about the 19th century intellectual history of the field: first, that all individual - and private law – centered perspectives were overly liberal and individualistic and second, that the association between Public and Private International Law enabled the latter to focus on global public goods and global justice generally. By contrast, the thesis shows, on the one hand, that many 19th century theories focused on the relationship between Public and Private International Law injected much of the formalism and alleged neutrality of today’s Private International Law and on the other, that several individual-centered perspectives adopted a relational, rather than individualistic image of the individual. ii By recovering academic debates in Private International Law between the mid 19th to the mid 20th century, the thesis traces how this “relational internationalist” perspective was misunderstood and eventually disappeared from the memory of the field. Through a detailed analysis of the writings of the three main protagonists of the “relational internationalist” perspective, namely Joseph Story, Carl von Savigny, and Josephus Jitta, the thesis recovers the analytical foundation of this lost theoretical perspective with respect to rights, legitimate authority and the cosmopolitan dimensions of Private International Law. This thesis both tells a different history of 19th century Private International Law than the conventional one, and suggests that its “relational internationalist” component could provide a platform on which to now build a humanist perspective in PrIL which focuses both on the recognition, as well as the social responsibility of individuals in their transnational relationships. iii Acknowledgments It is a great pleasure for me to acknowledge and thank those who have helped, supported and guided me through the process of writing this dissertation. For this dissertation I benefitted from funds provided by the Law School of the University of Toronto, the Ontario Graduate Scholarship, and the Strauss Fellowship in International Law. I am indebted to Toni Fine without whose mentorship and support I might have never embarked on the journey of pursuing an SJD. For valuable discussions, comments and suggestions on different parts of the thesis I am thankful to Eyal Benvenisti, Hanoch Dagan, Martin Flaherty, Stepanie Francq, Benedict Kingsbury, Jan Kleinheisterkamp, Horatia Muir Watt, Liam Murphy, Annelise Riles, Jeremy Waldron, the SJD students in residence at the NYU Law school in 2014-2016, the 2014-2015 visiting doctoral researchers at NYU law school, especially Stef Feyen and Bartosz Marciniak, the participants in the 2015 IGLP workshop and conference and the participants in the 2013 conference at Windsor Law School. For their wonderful friendship and moral support I am grateful to my SJD colleagues Danielle Bertollini, Lidsey Carson, Joanna Langille, Andrew Martin and David Sandomierski. I could have never hoped for more remarkable academics and wonderful people than those in my SJD committee. I will never be able to adequately thank my supervisor, Professor Karen Knop, for the relentless support and mentorship she has offered me throughout these years. She remains a role model for me. Her unparalleled knowledge, creativity, thoughtfulness, remarkable hard work and elegance never cease to amaze me. I am especially grateful to her for supporting and encouraging me to allow enough time to be a mother, daughter and wife while also focusing on my dissertation. Professor Catherine Valcke has been a rock of support and inspiration for me from the very beginning of my SJD. I have learned enormously from her thoroughness and her kindness. Every comment or suggestion I ever receive from her is a true gift. iv Professor Robert Wai has pushed and molded my thinking on this project in remarkable ways. His expertise and patient guidance have allowed me to think about this topic in more ways than anticipated. I am especially grateful to Prof. Diego Fernández Arroyo who served as an external examiner and has offered tremendously helpful feedback and suggestions, and Prof. David Dyzenhaus who served as an internal examiner and who has been incredibly kind and supportive. I am particularly grateful to my family, especially my sister Diana Petrovszki, my parents Marilena and Ion Popescu, my parents in law Laura and Marin Banu, Ema Iancu, and Rodi and Tataia Vasile. Their love and faith have motivated and pushed me forward. Above all, I am grateful to my husband, Andrei Banu, who stood by me, helped and supported me at every trying moment during these years. His love and patience have kept and keep me going. v TABLE OF CONTENTS INTRODUCTION ................................................................................................................................... 1 I. THE FAULT OF HISTORY ......................................................................................................... 5 II. THE STATE, THE INDIVIDUAL AND THE RELATIONSHIPS ....................................... 8 III. HISTORY AND THEORY .......................................................................................................... 12 1. HISTORICAL CONTEXT .................................................................................................................................. 12 2. DIALOGUES AS ENTRY POINTS ................................................................................................................... 17 3. INTERNATIONAL THEMES WITHIN AN INTERNATIONAL DIALOGUE ............................................. 19 4. TIME, PEOPLE, PLACES ................................................................................................................................. 20 5. THE DIALOGUE BETWEEN PAST AND PRESENT .................................................................................... 22 CHAPTER 1 - INDIVIDUAL- AND STATE-CENTRIC PERSPECTIVES IN NINETEENTH CENTURY PRIVATE INTERNATIONAL LAW .......................................... 24 I. INTRODUCTION ............................................................................................................................. 24 II. THE FIRST TWO GIANTS OF THE 19TH CENTURY ......................................................... 28 1. JOSEPH STORY .................................................................................................................................................. 28 2. CARL VON SAVIGNY ...................................................................................................................................... 36 III. CONFLICTS OF LAWS AS CONFLICTS OF SOVEREIGNTY ..................................... 44 1. PASQUALE MANCINI ...................................................................................................................................... 47 2. ANTOINE PILLET AND ERNST ZITELMANN ............................................................................................. 56 V. JOSEPHUS JITTA .......................................................................................................................... 68 VI. CONCLUSIONS ............................................................................................................................. 80 CHAPTER 2 - INDIVIDUAL- AND STATE-CENTERED PERSPECTIVES IN NINETEENTH CENTURY EUROPE ............................................................................................. 83 I. INTRODUCTION ............................................................................................................................. 83 II. SAVIGNY’S LEGACY ................................................................................................................... 84 1. THE INTERNATIONAL COMMUNITY OF STATES .................................................................................... 86 2. THE SEAT OF THE LEGAL RELATIONSHIP ............................................................................................... 89 III. THE DEBATE AMONG UNIVERSALISTS .......................................................................... 92 IV. UNIVERSALISM VS. PARTICULARISM .......................................................................... 101 V. SOVEREIGNTY AND VESTED RIGHTS IN LATE 19TH CENTURY ENGLISH PRIVATE INTERNATIONAL LAW SCHOLARSHIP ........................................................... 106 VI. CONCLUSIONS .......................................................................................................................... 110 CHAPTER 3 - TRACING THE RELATIONAL INTERNATIONALIST PERSPECTIVE IN EUROPE AFTER WORLD