Abstract: I INTRODUCTION This article argues first and foremost for seeing private international law, or conflict of laws, as a private side of citizenship. (1) Although we ordinarily think of citizenship as public, private international law covers same ground as postnational citizenship and differentiated citizenship. Among other developments, idea of postnational, or denationalized, citizenship captures fact that noncitizens have come to have many of rights traditionally limited to citizens. (2) Similarly, private international law can include noncitizens through rules such as those regarding standing to sue and jurisdiction. Differentiated citizenship is result of policies of multiculturalism in western democracies. In some cases, citizenship branched out from individual rights, to rights of individuals belonging to minorities, all way to collective rights of minorities; and from rights to religion, language, and culture, to forms of autonomy for historical minorities. Comparable to differentiated citizenship, private international law controls heterogeneity of a society via such rules as choice of law and recognition of foreign judgments. In fact, framing private international law as private side of citizenship is a restorative rather than a radical move. (3) In his lapidary essay on ideals of citizenship since classical times, historian J.G.A. Pocock distinguishes tradition of legal citizenship attributed to Roman jurist Gaius from that of political or republican citizenship associated with Greeks, particularly Aristotle. (4) In Gaian tradition, the status of 'citizen' ... denotes membership in a community of shared or common law, which may or may not be identical with a territorial community. (5) Over many centuries, legalis homo, as Pocock calls him, has come to mean someone who can sue and be sued in certain courts. The Gaian formula for citizenship is quintessentially private, epitomized by civil rights like property, contract, and tort. When we talk today about citizenship as rights, though, we no longer think much about horizontal relationship between individuals expressed through state's law and enforced by its courts. Instead, we tend to think of individual's vertical legal relationship to state. (6) Opening with an example of a terrorist home, part II of this article differentiates public citizenship and private citizenship (public/private citizenship) and presents private international law as private side of citizenship in Roman tradition. Because it harks back to legalis homo, however, private international law turns assumptions about citizenship upside down. (7) What is old is new, and what is new is old. Private international law feels like an anachronism because it ends where most work on citizenship begins. At margins, its transnational nature puts into question basic civil rights that citizenship theorists usually take for granted, for citizens and even for noncitizens. In part III, English and Canadian (8) private-international-law cases involving enemy aliens and illegal immigrants serve as illustrations. Paradoxically, private international law also feels remarkably modern because, read against citizenship literature, it begins where much of more sophisticated work on citizenship ends. Indeed, compared to private international law, some of most controversial proposals for multicultural citizenship seem quite standard. Whereas part III looks at divide between citizens and noncitizens, part IV deals with multiculturalism, particularly regulation of immigrants belonging to religious minorities. Using examples drawn from English and Canadian family law, it shows how private international law has ability to normalize, structure, and otherwise help imagine what multicultural citizenship does and could look like. Parts III and IV demonstrate that judges have, in effect, used form of private to check intolerance of public. …
Publication Year: 2008
Publication Date: 2008-06-22
Language: en
Type: article
Access and Citation
Cited By Count: 15
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot