Philosophy of
Law and the Conflict of Laws
In the late nineteenth and early twentieth centuries
in the United States, work in what would now be called the
philosophy of law took the form of theory in the conflict of laws.
American philosophers of law as diverse as Wesley Newcomb Hohfeld,
the American legal realists, and Ronald Dworkin all started out
working on the field. Indeed, American legal realism began as an
attack on Joseph Henry Beale's vested rights theory of choice of
law. Since the advent of professionalized philosophy of law,
however, the relationship between the conflict of laws and the
philosophy of law have been criminally neglected. With Roxana Banu
and Ralf Michaels, I have edited the following volume, in the
attempt to encourage work on the intersection between the two
fields:
The
Philosophical Foundations of Private
International Law (edited, with Ralf
Michaels and Roxana Banu) (Oxford University
Press, 2024)
Unlike
other works in the "philosophical foundations" series, this
volume is not a recapitulation of a large body of preexisting
work. It is instead a collection of first attempts at connecting
philosophy and conflicts.
There is so much to be done on the intersection between philosophy
and conflicts that I plan on working on the topic for the rest of
my productive life. I have written on how interest analysis - the
predominant choice-of-law method in the United States - is
incompatible with law's claim
to authority. And I have written on Kelsen's
doctrine of the unity of law from a conflicts perspective.
In addition, in the following two pieces I have argued that
principles of prescriptive and adjudicative jurisdiction are
reasons to believe that legal monism - the view that necessarily
one, and only one, legal system exists - is correct. To my
knowledge, I am the only avowed legal monist among current
Anglophone philosophers of law.
Legal Monism: An American
History, in Christoph Bezemek, Michael Potacs and
Alexander Somek (eds.), Vienna Lectures on Legal Philosophy
23-48 (Hart Publishing 2018)
In this paper, I argue that American conflicts
scholars and jurists in the late-nineteenth and early
twentieth century were committed to legal monism.
Jurisdiction
and the Moral Impact Theory of Law,
29 Legal Theory 29-62 (2023)
In this article I use our
commitment to principles of jurisdiction to argue for legal
monism. Although this legal monism might be Kelsenian (in the
sense that law is independent of both social and moral facts),
here I offer principles of jurisdiction as a reason to think
that the moral impact theory of law, of the sort offered by
Mark Greenberg, is correct.
Return
to main page.