The Limits of Legality:

The Rule of Law Principles Governing the Common Law Public Policy Exception in Private International Law

by

Joanna Margaux Langille

A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science

Faculty of Law University of Toronto

© Copyright by Joanna Langille 2019

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The Limits of Legality: The Rule of Law Principles Governing the Common Law

Public Policy Exception in Private International Law

Joanna Langille

Doctor of Juridical Science

Faculty of Law University of Toronto

2019

ABSTRACT

The public policy exception is a well-established part of common law choice of law

doctrine. But to use the exception, judges must identify the forum’s fundamental values that

cannot be violated by foreign law. Scholars have argued that it is impossible to provide a

general account these values and have criticized the exception for introducing indeterminacy

into choice of law doctrine. As result, scholars argue, the exception represents a threat to the

rule of law.

This standard scholarly critique is rooted in a formal account of the rule of law. But in

the common law tradition, there is a well-established alternative theory: under the common

law constitutionalist account of the rule of law, judges must do much more than simply ensure

that the law is consistent, predictable, and determinate. Judges must also ensure that the law’s

content does not violate the fundamental rule of law values of the unwritten ‘common law

constitution.’

This project offers a novel common law constitutionalist account of the relationship

between the rule of law and the public policy exception. Instead of undermining the rule of

law, this account sees the public policy exception as a means through which courts uphold the

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rule of law. The exception allows courts to ensure that the content of foreign private law

selected by the forum’s choice of law rules does not violate the forum’s substantive rule of law

values. This account also offers guidance as to which values cannot be violated by foreign law:

the rule of law norms of the ‘common law constitution.’ In addition, this account helps make

sense of English and Canadian public policy jurisprudence, offering a compelling account of

the leading cases and the reasons that judges have used to invoke public policy.

Ultimately, common law constitutionalism would not see the public policy exception

as a ‘unruly horse,’ but as a necessary aspect of the rule of law; and as a unique doctrine

offering important insight into the fundamental values of the common law tradition and the

success of common law constitutionalism qua theory of the rule of law.

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ACKNOWLEDGEMENTS

I am grateful beyond measure for all of the support I received while working on this

project. My doctorate could not have been completed without the exceptional guidance of my

doctoral committee and the support of many institutions, intellectual mentors, colleagues,

friends, and family members.

While working on this project, I had the honour of being supervised by what must have

been the most engaged and thoughtful doctoral committee of all time. Arthur Ripstein, Karen

Knop, and David Dyzenhaus read countless drafts of this project (and various prior iterations),

never failing to provide me with razor-sharp commentary in record-breaking time. Their

intellectual generosity and engaged readership was an extraordinary gift, and it offered an ideal

model of academic mentorship that I can only hope to equal with my own students. Thank you

for always challenging me and helping to improve my scholarship.

I had the great pleasure of working on this project while in residence at the University

of Toronto Faculty of Law, NYU School of Law, NYU’s Institute for International Law and

Justice, Yale Law School, and the University of Groningen. My sincere thanks to those

institutions for providing me with office space and excellent scholarly resources. Thanks also

to the libraries and librarians at those institutions, and at the Peace Palace and Columbia

University.

I am also extremely grateful for the financial support that I received for this project

from the Trudeau Foundation, the Social Sciences and Humanities Research Council, the

Canadian Council on International Law, NYU School of Law (and in particular, the Furman

Program), and the University of Toronto Faculty of Law. This funding provided me with the

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most precious resource available to a young scholar: time to think and write. Thank you so

much for supporting my work.

My most sincere thanks also to my academic and professional mentors for their

generous support and encouragement throughout my career to-date. Huge thanks to David

Dyzenhaus, Rob Howse, Justice Kathryn Feldman, Barry Friedman, Justice Russell Juriansz,

Benedict Kingsbury, Karen Knop, Arthur Ripstein, Cristina Rodriguez, Sylvia Ostry, Lou

Pauly, Ngaire Woods, and Ernie Weinrib; and to the late Stephen Clarkson. Many thanks also

to the Legal Theory Reading Group at UofT Law, which offers the best model of intellectual

debate a legal theorist in training could ask for (and is consistently my favourite hour and a

half of the week).

I am also extremely grateful to numerous colleagues and friends for their intellectual

engagement and support during my doctorate. My sincere thanks to Haim Abraham, Julian

Arato, Greg Bowley, Jake Bronsther, Colin Chamberlain, Erika Chamberlain, Alexis Cohen,

Aaron Dhir, Angelina Fisher, Evan Fox-Decent, Rory Gillis, Kate Glover Berger, Margaret

Graham, Claire Houston, Leora Katz, Dennis Klimchuk, Nadia Lambek, Yael Lifshitz, Rande

Kostal, Sarah Mason-Case, Gisela Mation, Jason Neyers, Thomaz Pereira, Stephen Pitel,

Sophia Reibetanz Moreau, David Sandomierski, Erin Scharff, Eden Sarin, Rebecca Sutton,

Katie Sykes, Konstanze von Schuetz, Hamish Stewart, Malcolm Thorburn, and Tania Voon. I

owe a particular debt of thanks to Roxana Banu, Chris Essert, Larissa Katz, Lisa Kerr, Emily

Kidd White, Zoë Sinel, and Jacob Weinrib for their extraordinary encouragement and support

– thank you so much for making this project (and the start of my academic career) so much

fun. I am also grateful to Emily Muller for a very helpful series of conversations over the

course of this project.

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Finally, I am thankful for my family. Over the course of writing this dissertation,

Gwenn, Gary, Sarah, Lisa, Kate, Ez, and Abie welcomed me into their family and supported

me as if I had always been part of it – thank you so much. Thanks also to Joyce, Ruth, and

Dick; and to Win for teaching me to how to ‘fight when you’re losing.’ Thanks to Brian and

Cindy, who have been instrumental in inspiring me to pursue a life of ideas and in supporting

me on the way there. Mom, Dad, and Nic, thank you for your unconditional support and love,

and for teaching me what really matters. This dissertation is dedicated to Ryan Liss, who has

made this project – and every other project in our shared life – both possible to do and worth

doing.

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TABLE OF CONTENTS

Chapter 1: Introduction: A New Account of the Public Policy Exception ............................... 1

Chapter 2: Common Law Constitutionalism and the Rule of Law in the Context of Public Policy .................................................................................................................................. 51

Chapter 3: The Public Policy Exception and the Liberty Dimension of the Common Law Constitutionalist Account of the Rule of Law .................................................................. 116

Chapter 4: The Public Policy Exception and the Equality Dimension of the Common Law Constitutionalist Account of the Rule of Law .................................................................. 180

Chapter 5: A Hard Case: Kuwait Airways Corporation v Iraqi Airways Company ............. 236

Chapter 6: Conclusion and Implications ............................................................................... 290

Bibliography .......................................................................................................................... 310

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CHAPTER 1

INTRODUCTION: A NEW ACCOUNT OF THE PUBLIC POLICY EXCEPTION

Introduction

When deciding transnational private law disputes,1 common law courts are frequently

directed by their choice of law rules to apply the private law of foreign countries.2 On this

basis, courts regularly settle private law disputes by applying law that has been developed by

the courts and legislatures of other political jurisdictions from around the world – and not just

by applying the private law developed by their own courts and legislature. However, foreign

jurisdictions often have private law rules that are rooted in very different conceptions of justice

than that of the forum state, whose court is hearing the dispute. Foreign laws may even be

rooted in what the common law forum might consider to be a system of injustice or barbarism.3

The standard doctrinal mechanism in choice of law for dealing with the problem of

fundamentally unjust foreign law is the public policy exception, which allows common law

courts to refuse to apply foreign law that violates the forum’s fundamental principles of

morality and justice.4 The public policy exception is a well-established part of choice of law

1 I.e., private law disputes that are factually connected to multiple jurisdictions. 2 In addition to the law of a foreign country, choice of law rules can also direct one sub-federal unit to apply the law of another sub-federal unit from within their own country. See J-G Castel, Canadian Conflict of Laws, 4th ed (Toronto and Vancouver: Buttersworth, 1997) at 4-5 [Castel, Conflict of Laws]. Choice of law rules thus apply both internationally and intra-nationally. For ease of reference, I will typically refer to foreign law as the law of a foreign country rather than of another sub-federal unit within the forum’s country. 3 A barbarous order, according to a recent Kantian account of public law offered by Jacob Weinrib, is one that fails to secure the equal freedom of persons within a society by allowing certain individuals to be subject to the arbitrary power of others. For a discussion of this idea, and the contrast that Weinrib draws with the concept of an ‘unjust’ legal order, see Jacob Weinrib, Dimensions of Dignity (Cambridge, UK: Cambridge University Press), ch 2. This idea of arbitrary power as key to distinguishing between an acceptable and an unacceptable law/legal order will prove important for the account that I ultimately offer in this dissertation. 4 This is the most common formulation of the exception’s content, as I discuss in more detail below. See infra Part I.B.

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doctrine.5 But in order to apply it, judges must confront a difficult conceptual issue: they must

identify when the approach to deciding a particular private law issue taken by a foreign

jurisdiction is so different from the way in which the forum would have decided the issue that

it would amount to an injustice to apply the foreign law.6 This means that they must identify

which norms within their own system of private law are non-derogable or ‘constitutional’ in

nature,7 such that any foreign private law that violates those norms cannot be applied in the

forum.

This conceptual challenge posed by the exception has led most scholars to conclude

that the public policy exception is inherently indeterminate and offers judges insufficient

guidance on when it should be invoked.8 The exception has famously been called an ‘unruly

horse’ that can ‘lead you from the sound law.’9 It has been derided as an ‘enfant terrible,’10 a

‘substitute for thinking,’11 a ‘disturbing element,’12 a ‘passe-partout’13 and a ‘bête noir[e].’14

The perception that the exception is inherently indeterminate has also been thought to have

5 As I argue below. See infra Part I.C. 6 As I will explain, this differs from the ‘first order’ choice of law rules, which are largely built on the cosmopolitan assumption that it is appropriate for different legal orders to decide the same private law matter in different ways. See infra Part I.A. 7 As I will discuss below. See infra Part II.A. 8 See infra Part II.B. 9 Richardson v Mellish, (1824) 2 Bing 229 [Richardson v Mellish]. 10 N Fragistas, ‘La Compétence Internationale en Droit Privé’ (1961) 104 Recueil des cours 159 at 173 (referring to the public policy exception in the context of judicial competence: ‘C’est la notion de l’ordre public, cet enfant terrible du droit international privé qui se touve partout.’). 11 Monrad G Paulsen & Michael I Sovern, ‘“Public Policy” in the Conflict of Laws’ (1956) 56 Col L Rev 969 at 987 [Paulsen & Sovern, ‘Public Policy’]. 12 Henri Batiffol & Paul Lagarde, Droit international privé, 8th ed (Paris: Librairie générale de droit et de jurisprudence, 1993) vol 1 at 569 (‘Sans doute la notion introduit un élément perturbateur dans le jeu des règles de conflict’) (quoted in ThM de Boer, ‘Unwelcome Foreign Law: Public Policy and Other Means to Protect the Fundamental Values and Public Interests of the European Community’ in Alberto Malatesta et al, eds, The External Dimension of EC Private International Law in Family and Succession Matters (Milan: CEDAM, 2008) 295 at 296) [de Boer, ‘Unwelcome Foreign Law’]. 13 Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (1928) at 499 (quoted in de Boer, ‘Unwelcome Foreign Law,’ ibid at 296). 14 Paulsen & Sovern, ‘Public Policy,’ supra note 11 at 980.

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problematic downstream effects.15 Most importantly, the exception is understood by many

scholars as a threat to the rule of law in private international law.16 The underspecified

exception effectively gives judges the power to disregard the normal first-order choice of law

rules and to refuse to apply foreign law at their discretion, which makes first-order choice of

law rules less clear, certain, general, and predictable. Since the exception makes it harder to

predict which country’s law will apply to a particular transnational private law dispute,

scholars often conclude that the exception undermines the rule of law in private international

law.

This standard scholarly critique of the exception is rooted in a formal account of the

rule of law, whereby the rule of law is understood largely in terms of the certainty, clarity, and

predictability of legal rules.17 On a formal conception, the rule of law has an instrumental

function. Its role is to ensure that the law promulgated by officials is clear, predictable, and

certain, so that it can more efficiently direct human action and be complied with by the law’s

subjects. From this perspective, the discretion granted to judges through the public policy

exception is inherently problematic and destabilizing for the law.

15 In addition to the consequences for the rule of law that I discuss here, scholars have also pointed to another important ‘downstream’ effect of the exception that I do not discuss in any detail in this dissertation. Public policy is thought by some to offend against the inherent cosmopolitanism and internationalism underlying private international law. As I discuss below, the choice of law process is necessarily undergirded by a commitment to moral pluralism, where judges apply the law of foreign jurisdictions even when that law is different from the forum’s law, on the basis that it is legitimate for different states to decide private law disputes in different ways. This pluralism or cosmopolitanism is undermined, however, by the public policy exception. The exception allows courts to refuse to apply foreign law on the grounds that it would violate an important moral or legal value of the forum, and in so doing, it represents a ‘triumph of nationalism over internationalism.’ Otto Kahn-Freund, ‘Reflections on Public Policy in the English Conflict of Laws’ (1954) 39 Transactions of the Grotius Society 39 at 57 [Kahn-Freund, ‘Reflections’]. By invoking the exception, judges demonstrate ‘judicial chauvinism’ or even an ‘intolerable affectation of superior virtue.’ John K Beach, ‘Uniform Interstate Enforcement of Vested Rights’ (1918) 27:5 Yale LJ 656. Others have argued that this amounts to a type of ‘judicial cultural imperialism.’ John Murphy, ‘Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages’ (2002) 49:3 ICLQ 643 at 644. 16 As I argue below. See infra Part II.B. 17 As I argue below. See infra Part III.A.

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But in the common law tradition, there is a well-established alternative theory of the

rule of law. And this alternative, far from supporting a critique of the public policy exception,

may actually be able to make sense of the exception’s conceptual role in choice of law doctrine,

the values that should guide the exception’s use, and the application of the exception by courts

in practice. This alternative is known as the ‘common law constitutionalist’ approach to the

rule of law.

Under the common law constitutionalist account, the rule of law does not play an

exclusively or even primarily instrumental role; the rule of law is not a means by which any

rules that happen to be posited by officials are more efficiently enforced.18 Instead, the rule of

law should be understood as a ‘moral ideal of legality’ – a normative theory of justice that

ensures that the exercise of coercive political authority is justified, legitimate, and respectful

of the autonomy and dignity of persons. The law is not just whatever officials say it is; instead

it is a means by which the equal freedom of persons can be both protected and constituted.

For common law constitutionalists, then, judges must do much more than ensuring that

the law complies with the formal virtues of the rule of law (such as predictability, clarity,

consistency, and generality). Judges must also ensure that the substance of the law (and the

reasons for its application) conform with the fundamental rule of law values of the unwritten

‘common law constitution.’ These are principles of legality that ensure that the law does not

constitute mere arbitrary force, and that it is applied to individuals in a way that is consistent

with their liberty and equality. These principles are inherent in the concept of legality itself;

and also inhere in the common law, having developed through the gradual accretion of the

18 I set out the common law constitutionalist account of the rule of law below: see infra Part III.A and Chapter 2.

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common law over time. In order for the law to ‘be legal,’ judges must safeguard these

principles whenever they apply the law – no matter what type of law is under examination.

In this project, I argue that the common law constitutionalist account points to a new

way of understanding the relationship between the rule of law and the public policy exception.

Instead of undermining the rule of law, the common law constitutionalist account would see

the public policy exception as an important means through which courts can uphold the rule

of law. It is through the public policy exception that common law courts can ensure that the

content of foreign private law selected by the forum’s choice of law rules does not violate the

forum’s substantive rule of law values. Common law constitutionalism can therefore make

sense of the role that the public policy exception is meant to play in choice of law doctrine.

The common law constitutionalist account also addresses the conceptual challenge posed by

the exception, by offering guidance as to which values should guide the public policy inquiry:

on this view, it is the unwritten rule of law principles of the ‘common law constitution’ which

should guide when the public policy exception is used to declare that foreign law cannot be

applied in a common law forum. And finally, common law constitutionalism may also be able

to explain and justify the existing public policy jurisprudence, offering a compelling account

that helps make sense of judicial practice and the reasons common law judges have given when

using the exception to refuse to apply foreign law.

Ultimately, common law constitutionalists would not see the public policy exception

as a disruptive influence, but as a remarkable doctrine where judges must consciously identify

the non-derogable values of a common law legal order. Contrary to the prevailing

understanding, for common law constitutionalists the exception poses no problem, is no

‘disturbing element.’ Rather the exception supplies an ideal vantage point from which to study

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common law judges’ self-understanding of the fundamental, non-derogable, constitutional

values of the common law tradition. The exception may also therefore be able to offer

important insight into the fundamental values of the common law, and of the success of

common law constitutionalism as a theory of the rule of law.

To begin to establish these claims, this chapter will provide an introduction to the

exception and to the new account of the exception that I intend to offer in this dissertation. In

Part I, I supply an overview of the public policy exception doctrine: I situate it within the

structure of choice of law rules, describe the scope of scholarly consensus about the

exception’s content, and explain that the exception is a widely accepted part of choice of law

rules throughout the common law world. In Part II, I discuss the conceptual challenge posed

by the public policy exception – to use it, judges must identify the non-derogable norms of

their legal order – and I discuss the frequent critique of the exception as a threat to the rule of

law in choice of law. In Part III, I argue that this standard critique relies on a formal or positivist

conception of the rule of law. However, there is another leading approach to conceptualizing

the rule of law in the common law tradition: the common law constitutionalist approach. When

one adopts a common law constitutionalist lens, the public policy exception becomes easier to

account for, as common law constitutionalism can clarify the role the exception plays, and can

offer an account of the values that should animate its use. In Part IV, I discuss the method I

will use in this dissertation to consider whether the common law constitutionalist lens offers

an effective account of the exception; and to investigate what the public policy exception can,

in turn, tell us about the unwritten common law constitution and common law

constitutionalism. Finally, in Part V, I provide an outline of the subsequent chapters of this

dissertation, where I put this methodology into practice.

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Part I: Doctrinal Overview of the Public Policy Exception

A. The Place of the Public Policy Exception in the Architecture of Choice of Law

The public policy exception is part of choice of law, which is one branch of the broader

field of private international law (or conflict of laws, as it is also known).19 Private international

law is the area of law that deals with private law disputes that are factually connected to

multiple jurisdictions – what are sometimes called ‘transnational’ private law disputes.20 While

some aspects of private international law doctrine have been codified by domestic statutes and

international treaties, in most common law jurisdictions it remains largely governed by

domestic common law rules.21 And even in jurisdictions where other parts of the field have

been subject to codification, the public policy exception itself remains a creature of the

common law; it has never been subject to definition or codification through statute.22 Thus this

19 There is a substantial debate in the history of the theory of the field over whether ‘private international law’ or ‘conflict of laws’ is the more appropriate name for the field. See the discussion in PP North & JJ Fawcett, Cheshire and North: Private International Law, 11th ed (London: Butterworths, 1987) at 12-13 [North & Fawcett, Private International Law]; Adrian Briggs, The Conflict of Laws, 2d ed (Oxford: Oxford University Press, 2002) at 1-3 [Briggs, Conflict of Laws]; Castel, Conflict of Laws, supra note 2 at 5; CMV Clarkson & Jonathan Hill, The Conflict of Laws, 3d ed (Oxford: Oxford University Press, 2006) at 2-3 [Clarkson & Hill, Conflict of Laws]. In this project, I will use the two names interchangeably and will not pick a side in this debate. Note that some theorists object to calling the field of private international law a ‘branch’ of the law, as if it were a discrete subject matter, because the field is ‘all-pervading,’ cutting across virtually all types of disputes. See e.g. ibid, North & Fawcett, Private International Law at 6. 20 See e.g. Robert Wai, ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2002) 40 Colum J Transnat’l L 209. Recall again, though, that private international law disputes need not be international; they can also take place among the sub-federal units of a federal system. 21 ‘[T]he doctrine of public policy, its ambit and extent, and the manner in which it is to be applied has been entirely the creation of the common law. However, as the conflict of laws has been increasingly regulated by statute the doctrine of public policy has been enshrined in such legislation and in EC Regulations. These statutes, however, do not define the concept whose meaning and role must be ascertained from the common law.’ Clarkson & Hill, Conflict of Laws, supra note 19 at 485. See also Briggs, Conflict of Laws, supra note 19 at 6-49; Castel, Conflict of Laws, supra note 2 at 7-9; Sir Lawrence Collins, Dicey, Morris and Collins on the Conflict of Laws, 14th ed (London: Sweet & Maxwell, 2006) at 10-30 [Collins, Conflict of Laws]. 22 For example, in European private international law regulation, public policy exceptions are left to the member state to define according to their own judicial practice.

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dissertation is focused on a doctrine that remains established entirely by common law

precedent.23

The field of private international law addresses three core issues. First, when a private

law dispute is factually connected to multiple jurisdictions, which court or courts have

jurisdiction to decide the dispute (the jurisdiction issue)? Second, when a court takes

jurisdiction over a dispute, which jurisdiction’s substantive private law rules should be applied

to resolve the dispute between the parties (the choice of law issue)?24 Third, once a court issues

a judgment in a particular private law dispute, can that judgment be recognized and enforced

by other courts around the world (the recognition and enforcement of foreign judgments issue)?

Choice of law rules come into play at the second stage of this analysis – after a court

has decided that it can exercise jurisdiction over a particular private law dispute and before

another jurisdiction’s court has rendered judgment in the dispute.25 If a private law dispute has

a relevant ‘foreign element’ – i.e. an important factual connection to another jurisdiction – the

common law forum must decide which jurisdiction’s substantive private law rules should

apply to resolve the dispute between the parties.26 The court with jurisdiction over the matter

will not simply assume that its own substantive private law rules will apply to the dispute.27

Rather, the court will consider which country’s law has the most legitimate and authoritative

claim to govern the dispute: the forum’s law or some foreign country’s law. It is the forum’s

‘choice of law’ rules that make this determination.

23 As Clarkson and Hill put the point, ‘there is no closed list of cases where public policy can be invoked’; the court ‘always possesses a residual discretion to refuse to apply a foreign law.’ Clarkson & Hill, Conflict of Laws, supra note 19 at 153, 15. 24 As I note above, a foreign jurisdiction for conflicts purposes can be a sub-federal unit within a court’s federal system – i.e. the law of another province or state. 25 Otherwise the court would be prohibited from rendering judgment under standard common law preclusion doctrine. 26 For a discussion of the idea of a ‘foreign element,’ see Collins, Conflict of Laws, supra note 21 at 3. 27 Unlike in the context of public law.

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The process for determining which jurisdiction’s law should apply is itself divided into

two stages.28 In the first stage – what I will call the first-order or ‘applicable law’ stage – the

court applies its choice of law rules to identify which jurisdiction’s substantive private law

should apply to the dispute. The court begins by characterizing the issue in the dispute,

deciding what type of private wrong has been alleged.29 (For example, is the wrong alleged a

tortious wrong to person or property? A breach of a contractual obligation?)

Given the nature of the wrong, the court will then apply its choice of law rules to the

dispute to pick out the applicable law. This requires the court to examine factual aspects of the

dispute, such as where the alleged wrong took place, whether the parties explicitly identified

which jurisdiction’s law would be applicable to their dispute in a contract, and in what

jurisdiction are the persons and things related to the dispute located. Which of these

‘connecting factors’ is relevant will depend on the nature of the wrong alleged. For example,

if the forum court characterizes the wrong as a tort, many common law jurisdictions will apply

the law of the place of the wrong – the lex loci delicti.30 As a general rule, these connecting

factors typically do not focus on the substantive content of the various laws under

consideration, but rather on the factual connections between the parties, the wrong alleged,

and the various jurisdictions.31

28 This, of course, excludes many other nuances and ways of dividing up the choice of law process. For a more elaborate structure, see Karen Knop, Ralf Michaels, & Annelise Riles, ‘From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style’ (2012) 64 Stan L Rev 589 [Knop, Michaels, & Riles, ‘From Multiculturalism to Technique’]. 29 Briggs, Conflict of Laws, supra note 19 at 9-14. 30 See Castel, Conflict of Laws, supra note 2, ch 37. However, each state’s choice of law rules vary. There is little supranational law requiring common law courts to adopt particular choice of law rules, and these rules vary based on the nature of the wrong alleged. Conflicts is thus ultimately a field of municipal law. See Castel, ibid at 4-5; AV Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 2d ed (London: Stevens and Sons, 1908) at 14-15 [Dicey, Conflict of Laws]. 31 Briggs, Conflict of Laws, supra note 19 at 21-28, 29 (‘little or no attempt is made to compare and evaluate the result which would be produced by the rules of law from the various systems which connect to the facts, still less to choose between them’). But see Sagi Peari, ‘Can Better Law be Married with Corrective Justice or Evil Laws?’ (2016) 61:3 McGill LJ 511 [Peari, ‘Better Law’].

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In this ‘applicable law’ stage of the analysis, a common law court’s choice of law rules

will frequently identify some foreign jurisdiction’s private law as the appropriate law to govern

the dispute between the parties.32 To again take tort law as our example: if an Ontario court

were to hear a dispute about an alleged personal tort that took place when the parties were in

New York,33 the court’s choice of law rules would point towards applying New York tort law,

since the general choice of law rule for torts in Canada is that courts should apply the law of

the place of the alleged wrong.34

If the court’s first-order choice of law rules point to applying the law of a foreign

jurisdiction, a second stage of the choice of law analysis may arise: the court can consider

whether the content of the foreign law violates the forum’s ‘public policy’ – its fundamental

principles of morality and justice.35 The public policy exception is thus raised as a potential

objection to the normally applicable foreign law that has been selected by the forum’s choice

of law rules;36 and it only arises at this second stage of the choice of law process, what some

leading commentators have dubbed the ‘ethical moment’ in choice of law.37 So at this stage of

the analysis, the Ontario court from our example would examine the content of New York tort

law to see whether it violates Canadian public policy. This is in contrast to the first stage of

the choice of law process, which largely ignores the content of the substantive laws of the

jurisdictions to which the dispute is connected and focuses instead on the nature of the factual

32 Briggs, Conflict of Laws, supra note 19 at 3 (‘The principal characteristic of the conflict of laws is that it will sometimes lead to a judge being asked to apply foreign law to the dispute.’). 33 The Ontario court would have jurisdiction over the dispute if, say, the parties were both domiciled in Ontario. 34 Tolofson v Jensen, [1994] 3 SCR 1022. 35 This is the most common formulation of the exception’s content, as I discuss in more detail below. See infra Part I.B. 36 ‘Before the issue of public policy becomes crucial the court must first decide whether the foreign law is applicable’: United States of America v Bulley, [1991] BCJ No 806 (CA). 37 Knop, Michaels, & Riles, ‘From Multiculturalism to Technique,’ supra note 28. See also Adeline Chong, ‘The Public Policy and Mandatory Rules of Third Countries in International Contracts’ (2006) 2:1 J Priv Intl L 27 at 27 (‘The concept of public policy has strong ethical associations.’) [Chong, ‘Public Policy’].

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connections between the legal wrong alleged, the parties involved in the dispute, and the place

where the dispute arose.

If a court decides at this second stage that the foreign law at issue would violate the

forum’s public policy, the court will override the normal choice of law rules and instead apply

the forum’s law to resolve the dispute. So if the public policy exception is successfully invoked,

the foreign jurisdiction’s private law will be refused application, and the dispute will be

resolved according to the forum’s private law rules.38

This account of the architecture of the choice of law inquiry is broadly accepted by

scholars from across common law jurisdictions.39 However, a minority viewpoint among

scholars called ‘interest analysis’ advocates for a collapse of the two stages of the choice of

law analysis.40 This approach was developed by American scholar Brainerd Currie in the mid-

twentieth century,41 building on the American legal realist critique of ‘classical’ choice of law

38 It is ‘as though [the foreign law] did not exist.’ Clarkson & Hill, Conflict of Laws, supra note 19 at 484, quoting Kuwait Airways Corporation v Iraqi Airways Company, [2002] UKHL 19 [Kuwait Airways, House of Lords]. 39 However, some commentators have argued that the divide between the first and second stage of the analysis is not as stark as the picture I have presented here, and so we should not assume that there is an acoustic separation between the applicable law stage and the public policy stage. Some scholars have suggested that some of the core choice of law rules applied at the first, applicable law stage are actually informed by the substantive values and principles of the common law – what we might think of as public policy values that typically come in at the second stage of the analysis. (See e.g. Clarkson & Hill, Conflict of Laws, supra note 19 at 485: ‘there are many conflicts rules which, while framed in different terms, are either performing the same function as a doctrine of public policy or, alternatively, can be regarded as crystallisations of public policy’). Most famously, Otto Kahn-Freund argues that rules that start out as aspects of the second, public policy stage of the analysis will frequently crystalize into core choice of law rules at the primary, applicable law stage of the analysis. Kahn-Freund, ‘Reflections,’ supra note 15. Other scholars have argued that the factors that inform the applicable law stage of the analysis – the factual connections between the parties and the various jurisdictions analyzed when deciding the applicable law – should influence the public policy stage of the analysis. For example, Alex Mills argues that it is more legitimate to use public policy to refuse to apply foreign law if a dispute is closely connected to the forum. Alex Mills, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4:2 J P Int’l L 201 at 210-2 [Mills, ‘Dimensions’]. 40 In addition, one might also argue that the ‘better law’ approach formulated by Leflar also conflates the two stages of the analysis. See Robert A Leflar, ‘Choice-Influencing Considerations in Conflicts Law’ (1966) 41:2 NYUL Rev 267; Peari, ‘Better Law,’ supra note 31. However, Leflar’s better law approach has been significantly less influential than Currie’s and thus I do not consider it in any detail here. 41 Currie’s position was articulated in a series of articles published throughout his career. See Brainerd Currie, Selected Essays on the Conflict of Laws (Durham, NC: Duke University Press, 1963) [Currie, Selected Essays].

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approaches.42 According Currie, public policy analysis of values should not be relegated to a

second and distinct stage of the choice of law process. Instead, Currie argued, ‘why not

summon public policy from the reserves and place it in the front line where it belongs?’43 As

such, when deciding which law should apply, the choice of law process should focus on what

Currie called the ‘interests’ of the different governments in having their law applied to a

particular dispute – the social and economic objectives of the particular private laws in

question, rather than the traditional connecting factors that focus on the facts of the dispute.44

Currie thus argued for a collapse of the two-stage analysis, an approach that has had a major

influence on choice of law scholarship and doctrine within the US.45 Outside of the US,

however, interest analysis has not been adopted by any jurisdiction, and it remains a minority

approach to the structure of choice of law. Thus for the purposes of this dissertation I will set

it aside, as this dissertation aims to provide an interpretive account of the dominant judicial

approach to the public policy exception (as I discuss below).46

B. The Content of the Public Policy Exception

While there is significant scholarly debate regarding the content of the public policy

exception (as I will also discuss below), there are certain widely accepted features of the

exception’s content. Scholars agree that the public policy analysis focuses on the substance of

foreign law: the court should ask directly whether the substance or content of a particular

42 See e.g. Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of Laws (Cambridge, MA: Harvard University Press, 1949); Ernest G Lorenzen, Selected Articles on the Conflict of Laws (New Haven: Yale University Press, 1947). 43 Currie, Selected Essays, supra note 41 at 88. 44 As such, Currie adopts an instrumental approach to private law. 45 See Symeon C Symeonides, ‘The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning’ (2015) 5 U Ill L Rev 1847. 46 It is primarily for this reason, that I do not focus on American approaches to public policy in this dissertation (both as a doctrinal and theoretical matter), as they have developed under the influence of a very different approach to public policy than the other common law jurisdictions, where the two-stage analysis is the predominate choice of law methodology. See infra Part IV.C.

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foreign law violates the forum’s public policy.47 Scholars and courts also agree that a ‘mere

difference’ between the content of forum and foreign law is not a sufficient basis on which to

invoke public policy.48 The structure of the choice of law inquiry, in which courts assess which

country’s law is most appropriate to govern a particular private law dispute, is built on the

cosmopolitan assumption that different countries will develop different systems of private law,

and that the substantive rules that should govern the parties’ interaction will differ depending

on how a private law dispute is connected to different political jurisdictions. Choice of law

thus relies on an in-built, pluralist notion that different jurisdictions can develop very different

legal approaches to the same private law question. The mere fact, then, that a foreign

jurisdiction would resolve a particular private law dispute in a different way from how the

forum would resolve the dispute is insufficient to ground a public policy objection.49 As Justice

Cardozo put the point in language that has been adopted by courts throughout the common law

world, ‘We are not so provincial as to say that every solution of a problem is wrong because

we deal with it otherwise at home.’50 To invoke public policy, then, it is not sufficient for a

47 Briggs, Conflict of Laws, supra note 19 at 44 (foreign law ‘will not be applied if its content is repugnant to English public policy, or if the result of its application in the given context is contrary to English public policy’). This is (as mentioned above) in contrast to the first stage of the choice of law process, which largely ignores the content of the substantive laws of the jurisdictions to which the dispute is connected in favour of examining the factual connections between the parties and the various jurisdictions. Any theory of public policy, then, must be one that helps courts to assess whether the content of foreign law is sufficiently problematic to be applied by the forum. 48 See Castel, Conflict of Laws, supra note 2 at 171-171 (‘The fact that the lex fori on the same point differs from the foreign law is not a sufficient ground for denying recognition to the foreign claim. Fundamental values must be at stake.’); Collins, Conflict of Laws, supra note 21 (‘mere difference is insufficient’); United States of America v Ivey, [1995] OJ No 3579 (Gen Div) (‘It is plainly not the case that enforcement will be refused on the grounds that the judgment sought to be enforced depends upon a law or basis of liability more strict or severe than the law of the forum.’); Boardwalk Regency Corp v Maalouf, [1992] OJ No 26 (CA) (‘where foreign law is applicable, Canadian courts will generally apply that law even if the result may be contrary to domestic law’) [Maalouf]. 49 And perhaps more pragmatically, if foreign and forum law did not differ in their resolution of a particular issue, the choice of law issue would not be plead by the parties – because it would make no difference to the outcome of the dispute. 50 Loucks v Standard Oil Co of New York (1918), 12 NE 198 at 201 [Loucks]. This line and many other parts of this judgment are quoted in many leading common law sources. See e.g. PE Nygh, Conflict of Laws in Australia, 5th ed (Sydney: Butterworths, 1991) at 248 [Nygh, Conflict of Laws]; Kuwait Airways, House of Lords, supra note 38 at 17.

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common law court to find that the content of a particular foreign law is different the forum’s

law, but rather the court must find that the foreign law is different in such a way that it would

amount to a public policy violation to apply it.51

Courts and commentators also frequently point out that the content of the public policy

exception in choice of law differs from the public policy exception in purely domestic private

law.52 In addition to its role in conflict of laws, public policy is also a well-established

exception in the common law of contract and property.53 But scholars and courts agree that the

purely ‘domestic’ use of public policy does not necessarily overlap with or inform the

‘conflicts’ use of the exception. These two different uses of public policy have different

histories and roles in their respective areas of the doctrine, and so we cannot extrapolate from

51 As we shall see, it is the difficulty in determining when this threshold is met that makes understanding the public policy exception so challenging. 52 Kuwait Airways, House of Lords, supra note 38 at 114: ‘The conception of public policy is, and should be, narrower and more limited in private international law than in internal law … Local values ought not lightly to be elevated into public policy on the transnational level’; North & Fawcett, Private International Law, supra note 19 at 131 (‘The conception of public policy is, and should be, narrower and more limited in private international law than in internal law. A transaction that is valid by its foreign lex causae should not be nullified on this ground unless its enforcement would offend some moral, social or economic principle so sacrosanct in English eyes as to require its maintenance at all costs and without exception’); Clarkson & Hill, Conflict of Laws, supra note 19 at 486 (noting that there is a ‘distinction between domestic and international public policy’); PB Carter, ‘The Rôle of Public Policy in English Private International Law’ (1993) 42 ICLQ 1 at 2 [Carter, ‘Rôle of Public Policy’] (‘public policy should not be invoked in private international law merely because it could, or would, be invoked in the forum if the same facts had been presented in a purely domestic context … Locally acceptable inhibitions and prejudices are not always appropriate in a transnational context. The automatic injection of standards applicable in a domestic situation into a transnational situation may be seen, at best as an exercise in mechanical jurisprudence, and at worst as blatant judicial chauvinism.’ (citations omitted)). However, for an account that elides the various contexts in which public policy is raised, see Farshad Ghodoosi, International Dispute Resolution and the Public Policy Exception (Oxford: Routledge, 2017) [Ghodoosi, International Dispute Resolution]. 53 William E Holder, ‘Public Policy and National Preferences: The Exclusion of Foreign Law in English Private International Law’ (1968) 17 ICLQ 926 at 926 (‘Public policy developed first as a judicial response in cases containing no transnational element’) [Holder, ‘Public Policy’]; Chong, ‘Public Policy,’ supra note 37 at 29 (‘There are two tiers of public policy: public policy that is applicable in a domestic context and public policy that is applicable even in an international context. French civil lawyers use the phrases “ordre public interne” and “ordre public externe” respectively’ (citations excluded)).

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a violation of the public policy exception in, say, Canadian contract law to its use in the choice

of law context.54

There is also scholarly consensus that the use of the public policy exception in choice

of law is connected to the forum’s fundamental principles of morality and justice.55 In

Cardozo’s famous formulation, adopted throughout common law jurisdictions, public policy

is used to refuse to apply foreign law when it would ‘violate some fundamental principle of

justice, some prevalent conception of good morals, some deep-rooted tradition of the common

weal.’56 Leading scholars have characterized the exception as related to the ‘fundamental

values of [the forum’s] law’57 and ‘concepts of essential justice and morality.’58 The consensus

is, then, that public policy has a normative role to play – that it relates to the forum’s values

and is an ‘ethical moment’ in the choice of law process.59

More rarely, scholars describe the exception’s content as designed to protect the

fundamental ‘interests’ and ‘policies’ of the forum.60 It is unclear, however, the extent to which

these formulations of the exception’s content are different from the standard normative

conception of the exception. Sometimes the ‘interests’ or ‘policies’ averted to are explicitly

54 Castel, Conflict of Laws, supra note 2: ‘Rules affecting public policy and public morals in the internal legal sphere need not always have the same character in the external sphere.’ 55 This has been called the ‘iron core’ of the exception. LR Kiestra, The Impact of the European Convention on Human Rights on Private International Law (TMC Asser Press: 2014) at 23 [Kiestra, Impact]. 56 Loucks, supra note 50; Collins, Conflict of Laws, supra note 21 at 1627; North & Fawcett, Private International Law, supra note 19 at 131; Kuwait Airways, House of Lords, supra note 38 at 17; Castel, Conflict of Laws, supra note 2 at 172. 57 Briggs, Conflict of Laws, supra note 19 at 44. 58 Castel, Conflict of Laws, supra note 2 at 171. 59 Knop, Michaels, & Riles, ‘From Multiculturalism to Technique,’ supra note 28. 60 See e.g. Joseph Story, Commentaries on the Conflict of Laws: Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments, 1st ed (Boston: Hilliard, Gray, 1834) at 26, 35, 203 [Story, Commentaries]; Dicey, Conflict of Laws, supra note 30 at 550; Joseph Henry Beale, A Treatise on the Conflict of Laws: Or, Private International Law (Cambridge, MA: Harvard University Press, 1916) (throughout referring to interests) [Beale, Treatise]; RH Graveson, Conflict of Laws: Private International Law, 5th ed (London: Sweet & Maxwell, 1965) at 576 [Graveson, Conflict of Laws].

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connected to the forum’s values,61 while at other times, commentators seem to suggest that

they are connected to putatively non-normative concerns such as statecraft and foreign

policy.62 So while there is agreement among scholars that public policy is at least meant to

protect the forum’s fundamental values (however those are to be conceived), there is some

disagreement about what other types of principles are to be included in the exception’s

content.63 For my purposes, I will rely on the scholarly consensus that the core of the public

policy exception relates to the forum’s fundamental norms and I will generally characterize

the exception as being invoked on the basis of the forum’s fundamental principles of morality

and justice (the common law’s most frequently employed formulation).64 Any account of the

role public policy plays in choice of law will at least have to account for this normative aspect

of its use; we do not need to define the precise edges of the exception’s content to begin to

consider how it should be understood, since the core of the doctrine is well established. I thus

set aside the question of which other types of principles might be part of the public policy

exception.

61 See e.g. Castel, Conflict of Laws, supra note 2 at 171 (seeming to use interests and values as synonyms). 62 See e.g. Dicey, Conflict of Laws, supra note 30 at 550 (discussing ‘English interests of state’). 63 For example, one scholar who offers an account of the public policy exception across all domains of law and who sees security interests as essential to public policy-type inquiries also insists that public morality is an important part of the exception’s content as well: Ghodoosi, International Dispute Resolution, supra note 52. 64 This is an extremely common formulation of the exception in case law. See e.g. National Surety v Larsen, [1929] 4 DLR 918 at para 70 (BCCA); Kaufman v Gerson, [1904] 1 KB 591 (CA (Eng)). See also Dingwall v Foster, 2014 ABCA 89 at para 32 (‘The public policy defence prevents the enforcement of a foreign judgment that goes against the Canadian concept of justice, and turns on whether the foreign law is contrary to our basic view of morality.’); Anderson v Anderson, 2012 ABQB 743 at para 37 (not ‘contrary to Canadians’ view of basic morality’); United States of America v The Shield Development Corp, [2004] 74 OR (3d) 583 (OSC) at para 38 (‘The common ground of all expressed reasons for imposing the doctrine of public policy is essential morality. This must be more than the morality of some persons and must run through the fabric of society to the extent that it is not consonant with our system of justice and general moral outlook to countenance the conduct, no matter how legal it may have been where it occurred.’); South Pacific Import, Inc v Ho, 2007 BCSC 211 at para 40 (nothing against basic morality in the law in question); ITV Games, Inc (Re), 2001 BCSC 1391 (2001) at para 25 (‘contrary to essential public or moral interest, or contrary to our conception of essential justice and morality’).

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Finally, there is also consensus that the types of norms and values that underlie the

exception are not merely the creation of a given judge’s private moral judgment or ethical

views (or those of any other individual or private party). Rather, public policy is to be derived

from the forum society’s fundamental moral and legal values.65 The exception is thus

understood by scholars to have a fundamentally public quality.66 And courts have held that the

public values that underlie the exception must be able to evolve over time;67 public policy is

not a fixed notion or a static set of categories, but instead should respond to changes in a

society’s fundamental moral and legal values.

C. The Doctrinal Status of and Standard Rationale for the Public Policy Exception Finally, as a matter of legal doctrine, the public policy exception is an extremely well-

established part of common law choice of law rules. As Arthur Nussbaum has commented,

‘there is in Private International Law scarcely a rule so common as [the public policy]

reservation in favor of the lex fori.’68 The doctrine is frequently referred to as ‘well-established’

in leading common law cases and treatises,69 and is also universally recognized in the civil law

tradition under the name ordre public.70 As one Soviet commentator put the point, ‘[t]here is

65 As Cardozo J said in Loucks, supra note 50: ‘The courts are not free to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness.’ 66 In the sense that it relates to norms of conduct that are widely endorsed and generally applicable, not necessarily in the sense of public versus private law. 67 Kuwait Airways, House of Lords, supra note 38 (quoting Blathwayt v Baron Cawley, [1976] AC 397 at 426): ‘public policy should move with the times and … widely accepted treaties and statutes may point in the direction in which such conceptions, as applied by the courts, ought to move.’ 68 Arthur Nussbaum, Principles of Private International Law (New York: Oxford University Press, 1943) at 110 [Nussbaum, Principles]. 69 See e.g. Kuwait Airways, House of Lords, supra note 38 at para 18; North & Fawcett, Private International Law, supra note 19 at 130 (‘It is a well-established principle that any action brought in this country is subject to the English doctrine of public policy’). 70 For discussion, see e.g. Ioanna Thoma, ‘Public Policy (Ordre Public)’, in Jürgen Basedow, Giesela Rühl, Franco Ferrari, & Pedro de Miguel Asensio, eds, Encyclopedia of Private International Law (Edward Elgar: 2017) ch 17; Gerhart Husserl, ‘Public Policy and Ordre Public’ (1938-1939) 25 Va L Rev 37 [Husserl, ‘Public Policy’]; Kent Murphy, ‘The Traditional View of Public Policy and Ordre Public in Private International Law’ (1981) 11:3 Ga J Int’l & Comp L 591 [Murphy, ‘Traditional View’]; M Forde, ‘The “Ordre Public” Exception and Adjudicative Jurisdiction Conventions’ (1980) 29 ICLQ 259.

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no country in which this exception has not played an important role in the refusal to enforce

foreign laws.’71 Or as Murphy states, ‘[r]eservations against obnoxious, barbaric, burdensome

or unjust laws or judgments are universal.’72 All international treaties codifying private

international law rules have included a public policy exception;73 and the exception has been

recognized by Sir Hersch Lauterpacht (in his capacity as a judge of the International Court of

Justice) as a ‘general principle of international law’ that must be read into all international

agreements on private international law since all municipal systems of conflict of laws contain

a public policy exception.74

Leading private international law scholars and commentators also concur that public

policy is an essential feature of any system of choice of law. For AV Dicey, perhaps the leading

commentator in the English common law tradition, the public policy exception is a ‘self-

evident’ corollary that ‘necessarily follows’ from the potential application of foreign law under

normal choice of law rules.75 As such, Dicey places public policy at the heart of his account of

choice of law.76 Likewise, for Joseph Story, one of the early leading American commentators,

public policy is a ‘necessary qualification’ that ‘seems irresistibly to flow from the right and

duty of every nation to protect its own subjects against injuries resulting from the unjust and

prejudicial influence of foreign laws.’77 Other leading classical conflicts scholars such as John

71 Max Habicht, ‘The Application of Soviet Laws and the Exception of Public Order’ (1927) 21:2 AJIL 238. For other area studies of the exception, see e.g. Richard Frimpong Oppong, Private International Law in Commonwealth Africa (Cambridge, UK: Cambridge University Press, 2013) (discussed throughout); Yongping Xiao & Zhengxin Huo, ‘Ordre Public in China’s Private International Law’ (2005) 53:3 Am J Comp L 653. 72 Murphy, ‘Traditional View,’ supra note 70 at 603. 73 See e.g. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 UNTS 3 art V.2 (entered into force 7 June 1959); Convention on Choice of Court Agreements, 30 June 2005, 44 ILM 1294 (entered into force 1 October 2015) arts 6, 9. 74 Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden), ‘Separate Opinion of Judge Sir Hersch Lauterpacht’ (28 November 1958), PCIJ 79 at 92. 75 Dicey, Conflict of Laws, supra note 30 at 33. 76 It is part of Dicey’s second General Principle governing the field. Ibid at 35. 77 Story, Commentaries, supra note 48 at 35, 33.

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Westlake, Joseph Beale, and Carl von Savigny also emphasize that public policy is an essential

feature of choice of law rules.78 Similarly, modern and contemporary scholars such as

Nussbaum, Cheshire, North, Kahn-Freund, Blom, Mills, and many others observe that public

policy is a key feature of the doctrine.79

The consensus is that public policy is an essential feature of choice of law because it

offers judges an ‘escape hatch’ or ‘safety valve’80 to avoid applying foreign law that would

violate some important value of the forum. Nussbaum’s view is representative:

Conflict rules constitute a one-sided commitment towards an indefinite number of foreign countries and towards the most varied and unforeseeable foreign policies. A sweeping proviso, or, as the Germans say, a ‘reservation clause’ (Vorbehaltsklausel), in respect to the Conflict norms is therefore indispensable, namely, that a foreign rule, though applicable under the Conflict norm of the forum, may be disregarded in case its employment would be incompatible with the public policy of the forum.81

78 See e.g. John Westlake, A Treatise on Private International Law or the Conflict of Laws (Philadelphia: T & JW Johnson & Co, 1859) at e.g. 183, 331 [Westlake, Treatise]; Beale, Treatise, supra note 60 at e.g. 112; Friedrich Carl von Savigny, Private International Law: A Treatise on the Conflict of Laws: And the Limits of Their Operation in Respect of Place and Time, trans by William Guthrie (Edinburgh & London: T & T Clark, 1869) at e.g. 80. 79 Nussbaum, Principles, supra note 68 at 110; GC Cheshire, Private International Law (Oxford: Clarendon Press, 1935) at 74 [Cheshire, Private International Law] (‘It is obvious that recognition cannot be demanded from an English Court of any right which, though valid in the country of its origin, is opposed to English notions of morality or public policy)’; North & Fawcett, Private International Law, supra note 19 (‘Certain heads of the domestic doctrine of public policy command such respect, and certain foreign laws and institutions seem to repugnant to English notions and ideals, that the English view must prevail in this country, for Scarman J has said that “an English court will refuse to apply a law which outrages its sense of justice and decency”’); Kahn-Freund, ‘Reflections,’ supra note 15 (‘But, however one may dislike it, one cannot wish it away, and it has the undeniable advantage of flexibility, because it applies only where the judge has gained the conviction that the application of foreign law to the case before him would lead to a result sufficiently repulsive to warrant the setting aside of the ordinary rules of the conflict of laws’); Joost Blom, ‘Public Policy in Private International Law and its Evolution in Time’ [2003] Nethl Intl L Rev 373 (‘Public policy is the last resort for protecting the integrity of the domestic legal system from unacceptable derogation that would result from the application of foreign law’); Mills, ‘Dimensions,’ supra note 39 at 202 (‘As a “safety net” to choice-of-law rules and rules governing the recognition and enforcement of foreign judgments, it is a doctrine which crucially defines the outer limits of the “tolerance of difference” implicit in those rules. This is a function which it has long performed, and which is increasingly important in multicultural societies and a globalising world’). 80 See e.g. Kiestra, Impact, supra note 55 at 23 (‘escape hatch’); Society of Lloyd’s v Meinzer, [2001] OJ No 3403 (CA) at para 60 (‘safety valve’); Mills, ‘Dimensions,’ supra note 39 at 202 (‘safety net’). 81 Nussbaum, Principles, supra note 68 at 110.

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A central feature of choice of law doctrine is that judges are often directed to apply the private

law of foreign countries, but foreign countries often have private law rules that are informed

by very different conceptions of justice than that of the forum. So there must be some sort of

final line of defense against the application of a foreign law that the forum decides is

unacceptably unjust or immoral. Public policy is therefore, scholars argue, a necessary feature

of a legal regime that often directs common law courts to look to other political jurisdictions

for the substantive private law rules that they will apply when deciding transnational private

law disputes.

Part II: The Challenge Posed by the Public Policy Exception and the Standard Scholarly Response

A. The Challenge While the public policy exception has a secure place in the doctrine of private

international law, it is also notoriously difficult to apply. To use the exception, common law

courts must answer a difficult question: they must decide whether the content of the normally

applicable foreign private law is sufficiently unjust or immoral that it cannot be applied by the

forum court. This poses an important conceptual challenge for judges.

At the first stage of the choice of law analysis, courts have no general obligation to

analyze the substance of foreign law to decide whether it is just or immoral.82 First-order choice

of law rules are rooted in the cosmopolitan assumption that it is perfectly acceptable for

different countries to develop substantively different private law rules, since different countries

and peoples can reasonably disagree about what the ‘just’ private law is in a particular

82 Again, on the standard view of choice of law rules. As discussed above, the interest analysis approach and the better law approach both advocate an investigation into the substantive of the laws under consideration. And there are some rare choice of law doctrines where courts must look to the content of the law to determine which law applies. But in general, choice of law rules do not entail an investigation into the content of the laws under consideration.

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context.83 The public policy stage of the analysis is different. It requires common law courts

to decide when the conception of private law justice articulated in a particular positive law of

a foreign jurisdiction is so different from the forum’s conception of justice that it would amount

to a violation of the fundamental values of the forum to apply the foreign law. This means that

to apply the exception, common law courts must identify the non-derogable values of the

forum’s system of private law justice.

We might also describe these values as those which are ‘constitutional’ in nature, in

the sense that the forum’s court cannot apply any positive legal rules that violate them. This

way of thinking might suggest that the forum’s constitution or bill of rights could identify the

relevant non-derogable values. However, the forum’s written constitution is unlikely to help,

because public policy analysis only arises in the private law context (in which the law governs

the horizontal relationship between individuals), whereas constitutional rights protections are

typically tailored to the public law context (governing the vertical relationship between citizen

and state).84 This means that standard written constitutional protections are generally not

applicable in the public policy context.85 So while we might understand the non-derogable

norms that should animate the public policy exception as in some sense constitutional, the

forum’s written constitution does not offer a source of directly applicable norms that can define

the content of the public policy exception (at least without more exposition and analysis).86

83 The only question is which state’s law can most authoritatively and legitimate resolve the dispute between the parties, given the facts of the dispute. 84 There is, of course, an important debate about the conceptual distinction between public and private law, and about the extent to which constitutional rights apply in the ‘horizontal’ context of private relationships. I discuss both of these debates infra in Chapter 2, Part I. 85 Likewise, a forum’s constitutional obligations would (as a formal matter) typically apply only to the actions of the forum’s own government, and not the action of some foreign state. I also discuss this infra in Chapter 2, Part I. 86 The purpose of this project may be in part to translate fundamental constitutional guarantees into the transnational private law context.

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The public policy exception thus poses a difficult conceptual challenge for common

law courts. What normative standard should judges use to decide when foreign private law is

so unjust or immoral that it cannot be applied by the forum? Which of the forum’s fundamental

values applicable in the private law context are non-derogable and constitutional in nature, so

that the normally applicable positive law must be denied application? And how or on what

basis would a common law court ever identify such values, particularly if the forum’s public

law-oriented written constitution does not offer a directly applicable source of norms to solve

this problem?

B. The Standard Scholarly Response

a. The Impossibility of Offering a Generalized Account of the Norms Governing the Exception

In the extensive literature on the exception, the standard answer that scholars have

given is that it is impossible to meet the conceptual challenge posed by the public policy

exception, because it is impossible to offer a general account of the fundamental values that

are part of a state’s ‘public policy.’ While scholars agree that the exception is a necessary

backstop to make sure that courts do not apply foreign law that violates the forum’s

fundamental values, they also agree that we cannot develop a general account of how to

conceptualize what those values are.

We can observe this attitude in a litany of scholarly remarks describing public policy

as vague and incapable of definition. English writer Westlake remarks, ‘no attempt to define

the limits of [the public policy exception] has ever succeeded.’87 Or as Canadian commentator

Castel says, ‘it is almost impossible to give a precise definition of public policy; nor can a

87 John Westlake, Private International Law, 6th ed (London: 1922) at 51.

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general statement be made about its scope.’88 According to the American law professor

Nussbaum, ‘it is familiar learning that these attempts [to define the doctrine] have failed’;89 or

as the Indian scholar Diwan notes, ‘So far no attempt has been made for a precise definition

of “public policy” and I submit that it is not possible to give any precise meaning to the term.’90

Public policy is ‘incapable of measurement’;91 it is an ‘indefinite concept’92 which has an

‘amorphous quality’93 and is ‘arbitrary, ambiguous, and uncertain.’94 English writer Cheshire

puts this point in the following way:

Although the principle is clear, the limits of [the exception’s] application are vague and impossible to define with exactitude. It is left to the discretion and tact of the judges to decide what parts of the policy of English law are sufficiently stringent to bring the principle into operation.95

Likewise, Australian commentator Nygh explains that, ‘In some instances exclusion of foreign

laws or institutions is justified by reference to vaguely defined social, moral or political

interests of the forum. The court can only define the exact exclusion rule as each situation

arises. Thus in this area public policy operates … “as the x of the law, the unknown

quantity.”’96 And Westlake observes, ‘There is no doubt great difficulty in drawing the line

88 Castel, Conflict of Laws, supra note 2 at 171. 89 Arthur Nussbaum, ‘Public Policy and the Political Crisis in the Conflict of Laws’ (1940) 49 Yale LJ 1027 at 1030 [Nussbaum, ‘Political Crisis’]. 90 Paras Diwan, Private International Law (New Delhi: Deep and Deep, 1998) at 127. 91 ‘The real difficulty with public policy as a limitation is that it is incapable of measurement. All law is an expression of policy and whether a particular foreign rule falls under the ban is a matter of opinion which can easily become a matter of whim.’ George Wilfred Stumberg, Principles of the Conflict of Laws (Chicago: Foundation Press, 1937) at 179. 92 Graveson, Conflict of Laws, supra note 60 at 570. 93 ‘The amorphous quality of public policy and its potential for abuse by result-oriented courts have long been recognized by the judiciary, which has urged caution in deciding cases upon public policy grounds.’ Murphy, ‘Traditional View,’ supra note 70 at 592. 94 T Baty, Polarized Law: Three Lectures on Conflicts of Law Delivered at the University of London (London: Stevens & Haynes, 1914) at 172. 95 Cheshire, Private International Law, supra note 79 at 75. Likewise, see Cheshire on public policy in the context of the recognition and enforcement of foreign judgments: ‘It is impossible to suggest any general test by which the exact limits of public policy may be determined, and, just as in the case of contracts, the utmost that we can do is to notice some of the judgments that have been held to be unenforceable on this ground’ (ibid at 524). 96 Nygh, Conflict of Laws, supra note 50 at 249.

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between the foreign laws which, on these principles, may and may not be admitted.’97 Public

policy thus belongs ‘to the body of legal phenomena which cannot be construed under a rigid

formula,’98 and so it is ‘easier to describe than to define in legal propositions.’99

According to leading scholars, then, ‘public policy’ is simply too vague and

indeterminate an idea from which to develop a conception of the non-derogable norms that

should govern its use and define the exception’s scope. Most scholars have concluded that we

are without a coherent and general account of when the exception should be invoked, and

courts have been left to decide on a one-off, case-by-case basis whether to use the exception.100

For this reason, scholars agree that the only way to characterize the exception is through

a retrospective analysis of the particular instances in which judges have used the exception to

refuse to apply foreign law.101 Scholars have offered various accounts of how to group the

instances in which courts have used the exception into various doctrinal ‘heads.’102 For the

97 Westlake, Treatise, supra note 60 at 181. 98 Husserl, ‘Public Policy,’ supra note 70 at 41. 99 Nussbaum, ‘Political Crisis,’ supra note 89 at 1037. 100 Of course, courts are always free to look to precedent to guide their use of the exception, and this has (as I shall argue in subsequent chapters) produced a more coherent approach to public policy than commentators have recognized. But this is not the same idea as being guided by a theory of how the exception is supposed to work. 101 When describing the exception, ‘[t]he most that an authority can do is to exemplify foreign rights which have been disregarded as conflicting with public policy.’ Cheshire, Private International Law, supra note 79. 102 For example, North and Fawcett group the exception into the following uses: where fundamental conceptions of English justice are disregarded, where the English conceptions of morality are infringed, when a transaction prejudices the interests of the United Kingdom or its good relations with foreign powers, and when a foreign law or status offends the English conceptions of human liberty and freedom of action. North & Fawcett, Private International Law, supra note 19 at 134-135. Clarkson and Hill articulate two categories: where foreign law would violate fundamental English ideas of morality, decency, human liberty or justice; and where the case falls within the scope of an English rule whose purpose is to protect the public interest. Clarkson & Hill, Conflict of Laws, supra note 19 at 164. Carter divides the exception into the following categories: where foreign law is unacceptably repugnant, where it is detrimental to British national interests, and where it violates general morality. Carter, ‘Rôle of Public Policy,’ supra note 52. Castel describes the exception’s use as follows: ‘Canadian courts will not recognise or enforce a foreign law or judgment or a right, power, capacity, status or disability created by a foreign law that is contrary to the forum’s stringent public policy, “essential public or moral interest” or “conception of essential justice and morality.”’ Castel, Conflict of Laws, supra note 2 at 171. And Nygh groups the exception’s use into: protection of the domestic interests of Australia, protection of the external interests of Australia, protection of moral interests of universal application; and contravention of accepted rules of international law. Nygh, Conflict of Laws, supra note 50 at 249-254.

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most part, however, these prior scholarly efforts do not challenge the consensus that there is

no general solution to the conceptual challenge raised by the public policy exception.103 We

remain without an account of how to think about the norms that should animate the exception’s

use.

b. The Rule of Law Problem this Generates

The uncertainty and indeterminacy in the idea of public policy means that scholars

cannot offer a generalized, conceptual account of the values that should trigger the use of the

exception. This inability to articulate an account of when public policy should be used, scholars

argue, leaves the question of when to employ the exception in the hands of individual judges.

If public policy has little fixed meaning or content, the exception’s use is not constrained or

cabined ex ante, giving judges what is effectively an unbounded discretion to refuse to apply

foreign law on the vague authorization of ‘public policy.’104

This potentially vast grant of discretion given to judges has been understood by some

scholars to pose a threat to the rule of law in private international law.105 According to many

scholars, the rule of law requires that the law be applied in a consistent, predictable, clear, and

general way. To grant judges ‘broad and unfettered’ discretion to refuse to apply foreign law

through the public policy exception106 could significantly undermine the consistency and

103 The approaches just mentioned are primarily efforts to categorize existing cases, without offering a theoretical or conceptual overlay or justification for the reasons that the categories are so constituted. One exception to this general trend in the literature is an important piece by Alex Mills, which offers a theory of how the exception should operate. Mills, ‘Dimensions,’ supra note 39. I discuss and engage with Mills’ approach to the exception at various points in this chapter and throughout the subsequent chapters of this dissertation. 104 As Mills writes, ibid at 202: ‘the exercise of public policy is often characterized and maligned as involving a broad and unfettered discretion, giving excessive and unguided power to the judiciary.’ 105 This is discussed in the greatest detail in ibid. 106 Ibid at 202.

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predictability of choice of law rules.107 Since the open-ended nature of the concept of public

policy means that essentially any foreign law that differs from forum law could be held to

violate the exception (even though a mere difference between forum and foreign law is

supposed to be insufficient grounds on which to invoke the exception), public policy undercuts

the ability of choice of law rules to generate predictable and consistent legal outcomes with

respect to which law should apply to govern particular types of transnational disputes. As Alex

Mills puts the point, this ‘excess[] of judicial discretion may be inconsistent with the English

constitutional conception of the rule of law.’108 The exception ‘risks empowering judges who

are not servants to higher legal principles, but autocrats of their courtrooms,’109 allowing

judges to evade their obligation to apply choice of law rules in a predictable, clear, and general

way.110

This is why some scholars have described public policy’s effect on choice of law rules

as an ‘emasculation of the conflicts process’111 and ‘the negation of private international

law.’112 If judges have a license to refuse to apply foreign law, even if their jurisdiction’s choice

of law rules would normally direct them to do so, this seems to render the role of the primary

choice of law rules moot, creating a type of lawlessness. As Mills argues, ‘An excessive

application of public policy discretion could undermine the very existence of rules of private

107 Ibid; William M Richman & David Riley, ‘The First Restatement of Conflict of Laws on the Twenty-Fifth Anniversary of Its Successor: Contemporary Practice in Traditional Courts’ (1997) 56 Md L Rev 1196 at 1228 (‘It is impossible to predict which issues will prompt a court to use the public policy escape’). 108 Mills, ‘Dimensions,’ supra note 39 at 205. 109 Ibid. 110 Ibid. 111 Clarkson & Hill, Conflict of Laws, supra note 19 at 15. 112 Kahn-Freund, ‘Reflections,’ supra note 15 at 57.

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international law.’113 Without a coherent account of public policy, this exception to the

ordinary rules of choice of law threatens to swallow those rules altogether.

Given this danger, some scholars have argued that the only solution to the challenge

that the public policy exception poses to the rule of law is for judges to use the exception as

seldom as possible,114 and to insist that reasons for which the exception can be invoked be

limited to those established by precedent.115 Ultimately, according to certain scholars and

judges, we can only deal with the rule of law problem by minimizing the exception’s use and

warning about the danger it poses, treating the discretion granted to judges through public

policy as a third rail that should be avoided.116

Part III: A Common Law Constitutionalist Account of the Exception

A. The Common Law Constitutionalist Alternative

The concern that Mills articulates – that an excess of judicial discretion granted by the

public policy exception will undermine the clarity and predictability of choice of law rules –

is rooted in what scholars would call a formal or positivist conception of the rule of law.117

According to this theory, most famously developed by Joseph Raz, the rule of law’s role is

113 Mills, ‘Dimensions,’ supra note 39 at 205 (emphasis added). Or as Murphy puts the point: ‘The indefiniteness and flexibility of public policy contributes to a tension between its role as a ground of last resort for decisions, and the demands for a regularized common law conflicts jurisprudence, which is just and predictable in its disposition of interjurisdictional disputes.’ Murphy, ‘Traditional View,’ supra note 70. 114 See ibid at 592: ‘The amorphous quality of public policy and its potential for abuse by result-oriented courts have long been recognized by the judiciary, which has urged caution in deciding cases upon public policy grounds.’ 115 Ibid, discussing the courts’ consensus that they could ‘expound but not expand’ the use of the public policy exception. 116 Ibid; Mills, ‘Dimensions,’ supra note 39. 117 Arguably the standard critique is also rooted in a positivist conception, at least as Mills articulates the critique. Mills discusses the worry that judges will undermine the legislature’s authority to promulgate the law through an excess of judicial discretion, a traditional ‘constitutional positivist’ concern. Mills, ‘Dimensions,’ supra note 39; David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge, UK: Cambridge University Press, 2006), ch 2 [Dyzenhaus, Constitution of Law]. There are, of course, non-positivist formalists, including Fuller and Dyzenhaus. But the traditional association of the formalist account has been with a positivist approach.

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instrumental: its function is to make law capable of being obeyed by and to direct the lives of

the law’s subjects. To perform this function, the rule of law must ensure that law’s form

conforms with certain qualities; to be capable of being obeyed, laws must be prospective, open,

general, clear, and relatively stable.118 Judicial discretion is thought to work contrary to these

objectives by making laws less certain, clear, and predictable; and thus it is the rule of law

understood in this formal way that the public policy exception is typically thought to threaten.

However, despite Mills’ assertion that the formal account of the rule of law which is

threatened by the public policy exception is “the English constitutional conception of the rule

of law,”119 there is in fact another well-established English constitutional conception of the

rule of law: the common law constitutionalist approach. And this approach, I shall argue, may

make the public policy exception look less like a disruptive influence and more like a

conceptually required means by which common law courts can protect the rule of law. It may

also offer guidance on what are the non-derogable or constitutional values of the common law

legal tradition that should govern when public policy is used to refuse to apply foreign private

law – and therefore this approach may address the conceptual challenge posed by the

exception.

Common law constitutionalists such as TRS Allan and David Dyzenhaus offer a theory

of the rule of law in the common law tradition.120 Under this account, the rule of law does not

118 For a classic statement of this approach, see Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979). 119 Mills, ‘Dimensions,’ supra note 39 at 205 (emphasis added). 120 As Evan Fox-Decent puts it. Evan Fox-Decent, ‘Democratizing Common Law Constitutionalism’ (2010) 55 McGill LJ 511 at 513 [Fox-Decent, ‘Democratizing’]. As TRS Allan writes in a representative passage, ‘It is in this fundamental sense that Britain has a common law constitution: the ideas and values of which the rule of law consists are reflected and embedded in the ordinary common law.’ TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 19 [Allan, Constitutional Justice]. As I will argue in Chapter 2, I will take TRS Allan and David Dyzenhaus as representative of the common law constitutionalist approach, but I also discuss other leading scholars such as John Laws, Dawn Oliver, and Evan Fox-Decent. The views of scholars working in this tradition can vary considerably, as I shall discuss in Chapter

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play an exclusively or even primarily instrumental role; the rule of law is not a means by which

any rules that happen to be posited by officials are more efficiently enforced.121 Instead, the

rule of law should be understood as a ‘moral ideal of legality’ – a normative theory of justice

that ensures that the exercise of coercive political authority is justified, legitimate, and

respectful of the autonomy and dignity of persons.122 The law is not just whatever officials say

it is; instead it is a means by which the equal freedom of persons can be both protected and

constituted.123

From this perspective, the rule of law does not simply require adherence to the formal

virtues of the rule of law such as generality and clarity. In addition to those considerations

regarding the law’s form, judges are also required to ensure that the law’s content and

reasoning respects certain substantive moral values. These substantive rule of law values (or

principles of ‘legality’) are meant to ensure that the law that is applied to individuals is not an

arbitrary use of force or domination. Instead, the exercise of legal authority must be consistent

with the ‘freedom as independence’ of persons.124 The law must ensure that individuals

maintain a sphere of freedom in which their actions are independent from the choices of

2, the part of this dissertation where I will examine the rule of law requirements of the common law constitutionalist approach in much greater detail. However, common law constitutionalists share a commitment to several key principles that mark them out as adhering to a distinctive approach to the rule of law. Thomas Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford J Leg Stud 435 at 440-441. For the purposes of my discussion in this chapter, I take Allan’s view to be representative, an assumption I substantiate in Chapter 2. 121 TRS Allan, ‘The Rule of Law as the Rule of Private Law’ in Lisa M Austin & Dennis Klimchuk, Private Law and the Rule of Law (Oxford: Oxford University Press, 2014) 67 [Allan, ‘Rule of Private Law’) (discussing rival ‘idealist’ versus ‘instrumental’ accounts of law. 122 Ibid at 67. 123 TRS Allan, ‘The Rule of Law’ in David Dyzenhaus & Malcolm Thorburn, Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016) 201 [Allan, ‘Rule of Law’]. I elaborate the meaning of this idea of ‘equal freedom’ at length infra in Chapter 2. 124 Ibid; Allan, ‘Rule of Private Law,’ supra note 121.

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others125 – a sphere in which no one is authorized to use coercive power to tell them what to

do. So understood, the rule of law allows people to be free from the domination of others,

which includes both actual interference with one’s choices and the threat of arbitrary

interference.126 In addition, this sphere must be granted equally to all of the law’s subjects,

securing ‘as far as possible an equal freedom for all.’127 This grant of freedom as independence

from the choices of others must therefore be consistent with the same freedom being granted

to all other persons. On this view of the rule of law, then, the content of the law must protect

certain substantive commitments to the liberty and equality of persons.128

According to common law constitutionalists, these principles of legality apply even in

the absence of a written constitution, as they are constitutive of law’s legitimacy even if they

have not been enacted through positive law.129 In the common law context, they have been

incorporated into the adjudicatory process through the practice of common law courts over

centuries. This process of adjudicatory accretion has developed a series of unwritten principles

that together form the ‘common law constitution.’130 These non-derogable, constitutional

principles of legality are substantive norms that must be complied with if a government wishes

to rule through law, and together they ‘make the exercise of legal authority legitimate.’131 They

125 Allan, ‘Rule of Law,’ supra note 123; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 121; TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford: Oxford University Press, 2013), ch 3 [Allan, Sovereignty of Law]. 126 Allan, Sovereignty of Law, ibid at 96; Allan, ‘Rule of Law as Rule of Private Law,’ ibid at 72, 74, 85; Allan, ‘Rule of Law,’ ibid at 205. Allan takes this idea of freedom as non-domination from Philip Pettit. As Pettit puts it, Republican philosophy focuses on a particular evil – the ‘evil of subjection to another’s will – particularly in important areas of personal choice.’ Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge, UK: Cambridge University Press, 2012) at 1 [Pettit, On the People’s Terms]. I discuss this inspiration for Allan’s approach in greater detail in Chapter 2. 127 Allan, ‘Rule of Law,’ ibid at 204. 128 I elaborate the nature of these commitments in much greater detail infra in Chapter 2. 129 Allan, ‘Rule of Law,’ supra note 123; Dyzenhaus, Constitution of Law, supra note 117 at 5. 130 Dyzenhaus, ibid. 131 Ibid at 5. Dyzenhaus argues that the rule of law is ‘constitutive’ of legal authority. Ibid at 8ff. These principles are not derived from the common law in particular, though they are instantiated in it, but rather they are moral principles derived from the very form of law itself. ‘When a society chooses to rule through law, it also chooses

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apply to any exercise of legal authority, and judges must always retain the power to ensure that

any law they are tasked with applying conforms with these requirements.132 Crucially for our

purposes, this means that common law constitutionalists have argued that these principles

apply even in the context of private law, where typical, written, public law constitutional

obligations would not directly apply.133

The common law constitutionalist approach necessitates a very different conception of

the judicial role than that associated with those who take a thinner, more formal, or more

positivist approach to the rule of law.134 For common law constitutionalists, it is conceptually

necessary that judges maintain discretion to ensure that the positive law complies with the

fundamental values of legality that inhere in the common law constitution. This should not be

understood as problematic discretion that risks disturbing orderly compliance with formal rule

of law values, but rather it is a necessary interpretive power that allows judges to bring the law

into compliance with its underlying moral aims.

B. A Common Law Constitutionalist Approach to the Public Policy Exception

With this very brief description of the common law constitutionalist approach set out,

it is possible to see how this conception of the rule of law may provide important insight into

how to best understand the public policy exception. Scholars have yet to consider the public

policy exception (and, indeed, private international law more generally) from a common law

constitutionalist perspective. However, as I will explain, from this common law

constitutionalist perspective, the exception can be understood to be simply an instance of

to subject itself to the constitutional principles of the rule of law, whether or not it articulates those principles in a bill of rights’ (ibid at 4). 132 As I discuss in Chapter 2, there is a debate between Allan and Dyzenhaus about what the common law constitution entails for the role of judges. See infra Chapter 2, Part I. 133 See e.g. Allan, ‘Rule of Private Law,’ supra note 121. 134 Again, see Chapter 2 for a comprehensive discussion of Allan and Dyzenhaus’ accounts of the judicial role.

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courts performing the basic judicial obligation to uphold the rule of law. Applying this

common law constitutionalist lens to the exception, I will argue, can help to clarify both its

role and its content.

First, the common law constitutionalist account may offer a helpful account of the role

that public policy is playing in choice of law doctrine. As discussed above, public policy is a

means by which common law courts can ensure that they do not apply any foreign private law

that violates the forum’s fundamental values. When we adopt a common law constitutionalist

perspective on this practice, the function that the exception plays looks very similar to the basic

duty judges have to assess whether the laws they apply comply with the demands of the rule

of law. Indeed, with this perspective, public policy seems simply to allow judges to perform

their basic rule of law role of protecting the forum’s fundamental principles of legality, but

here with respect to foreign law that has been selected through choice of law rules. Through a

common law constitutionalist lens, then, the public policy exception can be more precisely

understood as a means by which common law courts do what they are always required to do:

to ensure that any positive law – including the law developed by a foreign jurisdiction – does

not violate the substantive requirements of the rule of law. The exception can thus be

reinterpreted a rule of law check on the application of foreign law.

This understanding offers a more developed and particular account of what it is that

courts are doing when they use the exception and why public policy is a necessary part of the

common law’s system of choice of law. From a common law constitutionalist perspective,

foreign laws that violate public policy cannot be applied by the forum because in some sense

they do not ‘count’ as law as the forum understands it. They therefore cannot be used to resolve

a dispute in the forum, since courts (again, on a common law constitutionalist theory of the

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rule of law) are obliged to ensure that any law they apply conforms with the fundamental

requirements of legality that render law legitimate and authoritative.135

This common law constitutionalist approach to the role of public policy also makes its

supposedly disruptive influence on choice of law rules more understandable and less

problematic. The discretion granted to judges through the exception becomes less mysterious,

and reveals itself as an essential aspect of compliance with the rule of law.136 In essence, the

common law constitutionalist lens turns the traditional rule of law critique of the exception on

its head: the exception is not a disruptive, unruly influence that undermines the rule of law in

private international law, but rather is a necessary means by which common law courts can

ensure that the positive law of foreign jurisdictions is only applied when its content conforms

with the substantive requirements of the rule of law in the common law tradition.

Applying a common law constitutionalist lens may also help clarify what values should

animate the exception’s use. As discussed above, an important conceptual challenge posed by

the public policy exception is that it is difficult for judges to use because they must first identify

the non-derogable values that cannot be violated by any law applied by the forum. The

common law constitutionalist account offers helpful direction on how to think about what are

the non-derogable values that should animate the exception’s use. From a common law

constitutionalist perspective, if the exception is used to ensure that any law applied by the

forum court complies with its conception of the rule of law, it would be the unwritten principles

of the common law constitution – the substantive rule of law values with which the law’s

135 The plausibility of this theory is reinforced by remarks by certain private international law scholars that seem consistent with this approach. For example, Sagi Peari has recently suggested that the public policy exception might be connected in some way to natural law’s prohibition on ‘evil laws,’ an idea that could be consistent with a rule of law approach. Peari, ‘Better Law,’ supra note 31. 136 Indeed, in a sense, from this perspective, public policy becomes not an exceptional aspect of legal doctrine that must be explained away or minimized, but in fact the most basic function (protecting legality) that common law courts have.

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content must comply – that should inform when public policy should be used to refuse to apply

foreign law.

Ultimately, under a common law constitutionalist lens, the public policy exception

does not appear as a problem, the way that it has been viewed by the standard private

international law literature. Rather, common law constitutionalists would celebrate its

conceptual potential. Through this remarkable legal doctrine, common law judges must

explicitly and self-consciously articulate the fundamental, non-derogable values of the

common law tradition; the exception thus has the potential to be one of the most illuminating

doctrines in the common law, from a rule of law perspective.137 For this reason, while they

have yet to turn their attention to it, common law constitutionalists would see the exception as

an extraordinarily important site of study. It represents a platform where they can see whether

their account of the rule of law conforms with the practice of common law courts, and offers

a powerful keyhole into the self-understanding of common law courts.

Thus, the relationship between common law constitutionalism and the public policy

exception is potentially symbiotic. Not only might the common law constitutionalist account

offer novel insight into the nature of the public policy exception, but the public policy

exception may also be able to offer certain insight into important and longstanding debates

over the meaning of the rule of law. If common law courts have indeed used the exception to

refuse to apply foreign law on the grounds that common law constitutionalists would have

predicted, this will offer important support for common law constitutionalism as a theory of

the rule of law.

137 A point made by David Fraser: David Fraser, ‘“This is not like any other legal question”: A Brief History of Nazi Law Before UK and US Courts’ (2003) 19 Conn J Intl L 59 [Fraser, ‘Brief History of Nazi Law’].

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C. Indirect Support for this Approach

Thus far, I have suggested that the common law constitutionalist account seems to be

a natural lens through which to examine the public policy exception because of its unexplored

potential to make conceptual sense of the exception. In addition to making conceptual sense

of the exception, the common law constitutionalist approach also finds indirect support in and

builds upon prior scholarship on the exception.

For example, certain scholars have argued that the exception should be used to refuse

to apply foreign law when it would violate fundamental rights protected under constitutional,

regional, or international human rights instruments.138 Others have argued that the exception

is used when foreign law violates the forum’s conception of liberty (including basic rights to

liberty).139 These observations support my common law constitutionalist theory (as we will

see) because the common law constitutionalist conception of the rule of law entails protecting

individual rights.140

However, my account helps to resolve a key shortcoming of the suggestion that the

public policy exception reflects constitutional rights and international human rights: this claim

seems historically and jurisprudentially inaccurate. This understanding of the exception cannot

make sense of the fact that the use of the public policy exception radically predates most

written constitutional and human rights documents.141 The common law constitutionalist

approach, on the other hand, can help explain why it is that the public policy exception has

been used by courts for well over 200 years. The principles of legality of the common law

138 See, e.g. Mills, ‘Dimensions,’ supra note 39 at 213; James J Fawcett, Maire Ni Shuilleabhain, & Sangeeta Shah, Human Rights and Private International Law (Oxford: Oxford University Press, 2015); Horatia Muir Watt, ‘Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness Under the Brussels and Lugano Conventions’ (2001) 36 Texas International Law Journal 539. 139 See e.g. North & Fawcett, Private International Law, supra note 19 at 132. 140 See infra Chapter 2, Part III.A. 141 As we will see in my discussion of the case law in Chapters 3 and 4, infra.

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constitution do not need to be introduced through written sources of constitutional or human

rights obligations, but rather inhere in the unwritten principles of legality that have long guided

common law courts.142 But while my approach ultimately goes further than scholars who have

argued that public policy should be informed by written human rights instruments, because the

common law constitutionalists would agree that courts have an obligation to protect certain

core individual rights (though they would argue this obligation exists even in the absence of

positive law on point), these prior writings offer preliminary support for my approach to

interpreting the exception.

We can also see support for taking up a common law constitutionalist and substantive

rule of law approach to studying the public policy exception in the fact that some legal theorists

and constitutional scholars have already identified public policy cases as connected to debates

over the rule of law and over the core constitutional values of the common law tradition. For

example, in an important article, David Fraser uses the American and British courts’ treatment

of Nazi law in the post-war era under choice of law rules as a site from which to explore the

Hart-Fuller debate on the rule of law.143 Likewise, arguably the first English public policy case

– Somerset’s case from 1772,144 which held that Virginian law permitting slavery could not be

recognized in England as a matter of public policy – has attracted attention from scholars

interested in the constitutional and rule of law valence of the case.145 This interest in public

142 This is not to deny that there is an important, mutually reinforcing relationship between the unwritten norms of the common law constitution and the development of written constitutional and international human rights guarantees, a point made by scholars working in this tradition. See Evan Fox-Decent, ‘Contextual Constitutionalism After the UK Human Rights Act 1998’ (2012) 62:1 UTLJ 133. 143 Fraser, ‘Brief History of Nazi Law,’ supra 137. 144 As I discuss at length in Chapter 3, infra. 145 See e.g. Robert Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975); George Van Cleve, ‘“Somerset’s Case” and Its Antecedents in Imperial Perspective’ (2006) 24:3 Law and History Review 601; Daniel J Hulsebosch, ‘Nothing but Liberty: “Somerset’s Case” and the British Empire’ (2006) 24:3 Law and History Review 647; Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, NC: University of North Carolina Press, 1981).

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policy cases from ‘outsiders’ – constitutional scholars and legal theorists from outside of

private international law – supports the hypothesis that there is something important to be

gained from studying public policy jurisprudence from a constitutional/substantive rule of law

perspective.

Finally, we can also see indirect support for my proposed common law constitutionalist

approach in a strand of Canadian jurisprudence and scholarship on private international law.

In a series of landmark cases decided by the Supreme Court of Canada in the 1990s, the Court

‘constitutionalized’ private international law. While there is substantial debate in the literature

about what precisely this move to constitutionalize the field means,146 the Supreme Court of

Canada has indicated that there is an important connection between a society’s core

constitutional values and choice of law that should be explored in more detail. This renders

more plausible my suggestion that the public policy exception’s use is connected to the

substantive rule of law values of the common law constitution.

Part IV: Question Posed and Methodology

A. Questions Posed

To explore the public policy exception through a common law constitutionalist lens,

this dissertation will ask two questions. First, does the common law constitutionalist approach

to understanding the public policy exception that I have introduced in this chapter offer a

persuasive account of the exception? Can common law constitutionalism offer a compelling

description, explanation, and justification of the public policy exception as a legal doctrine?

Second, what insight can this doctrine – whereby courts must identify their jurisdiction’s

146 See e.g. Elizabeth Edinger, ‘The Constitutionalization of the Conflict of Laws’ (1995) 25 Can Bus LJ 38; Nathan Hume, ‘Four Flaws: Reflections on the Canadian Approach to Private International Law’ (2006) 44 Can YB Intl Law 161; Robert Wai, ‘In the Name of the International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International Law’ (2001) 39 Can YB Intl Law 117.

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fundamental values and decline to enforce positive law which is contrary to those values – tell

us about the fundamental values of the common law tradition? What can public policy tell us

about the common law constitution, and about common law constitutionalism as a theory of

the rule of law?

B. An Intepretivist Approach

To answer these questions, a number of methodological approaches are possible. One

option would be to consider them from a strictly theoretical perspective. For example, with

regard to the first question I pose, I could ask whether the common law constitutionalist

account makes sense of the exception’s role in choice of law, and whether it articulates a

legitimate role for courts to play, purely in the abstract – without examining the practice of

common law courts. In my view, however, this would be an inadequate way to assess whether

the common law constitutionalist approach offers a coherent and principled account of the

public policy exception. The law is not merely an exercise in abstract political theorizing, it is

also a means of organizing the day to day reality of human life. A theory of the public policy

exception that took no notice of how courts use the exception would therefore, in my view, be

an inadequate account. I therefore hope to provide an account of the exception that both offers

a plausible justification for the exception’s role in choice of law and explains and reflects the

way in which courts have used the exception in practice.147

147 As distinguished from a historical, prescriptive, or descriptive account. See Stephen A Smith, Contract Theory (Oxford: Oxford University Press, 2004) at 5 [Smith, Contract Theory]. Interpretive accounts contain elements of these approaches but they are not reducible to them. The classic account of an interpretive approach, which focuses on the dimensions of ‘fit’ and ‘justification,’ is Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986) [Dworkin, Law’s Empire]. (While there is substantial debate among Dworkinians about how to understand the relationship between fit and justification, I take no position in that debate. See e.g. Mark Greenberg, ‘How Facts Make Law’ 10 Leg Theory 157 at 197 n 47. For various interpretations of Dworkin’s interpretivism, see e.g. Arthur Ripstein, ed, Ronald Dworkin (Cambridge, UK: Cambridge University Press, 2007).) However, this approach to understanding the public policy exception in particular and private international law in general may not be the one that Dworkin himself would have adopted. In Dworkin’s only piece of writing on private international law, he makes some rather challenging and unconventional observations

39

To do so, I adopt an interpretivist approach to studying public policy. I will explore

whether my rule of law account makes sense of the way in which the doctrine has been used

by courts, and whether it can reveal an ‘intelligible order’ of the cases in which public policy

has been invoked.148 I will consider whether my account fits the legal doctrine, including the

reasons given by judges for their decisions; articulates a coherent rational that might be at play

in the doctrine; and morally justifies the law’s particular doctrinal features.149 My focus will

thus primarily be on the public policy case law to determine whether my proposed rule of law

account captures and justifies the way the exception has worked in practice, and in particular,

whether the reasons courts have used to refuse to apply foreign law on public policy grounds

are rooted in the substantive rule of law values identified by common law constitutionalists as

essential principles of legal orders in the common law tradition.150

I seek to provide an interpretive account of the public policy exception for several

reasons. First, this approach is an attractive way to make sense of legal doctrine, attending both

to the particulars of the legal doctrine as it has been articulated by common law judges and the

normative justification of legal practice. Broadly interpretivist approaches seek to present the

law in its ‘best light,’ offering a coherent account of the practice and reasoning behind a

particular doctrine.151 An interpretive approach may also be particularly helpful in the public

about the operation of choice of law rules, which may point toward a different and perhaps Currie-like understanding of public policy. Ronald Dworkin, ‘Comments on the Unity of Law Doctrine (A Response)’ in Howard Evans Kiefer & Milton Karl Munitz, eds, Ethics and Social Justice, vol 4 (SUNY Press: Albany, 1968) 200. 148 Smith, Contract Theory, ibid at 5. 149 This is adapted from Smith’s description of the approach in ibid, ch 1. 150 The thought is not that common law courts are likely to use the language of the rule of law or of common law constitutionalism when deciding public policy cases, but that their reasons are rooted in the core rule of law values of the common law tradition that common law constitutionalists have sought to identify. 151 One may ask why it is that I take these features of the public policy exception and the jurisprudence on point as given, and do not question whether the exception should operate as it does. The reason I do so is that I am trying to understand the public policy doctrine as it currently exists and to provide the best possible account for how it operates. In the concluding chapter of this project, I step back and provide a normative evaluation of the exception. But the general approach in the other chapters of this project is to try to understand and explain the

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policy context. As outlined above, scholars have understood public policy to be a vague and

indeterminate doctrine. If my approach can account for the way in which courts have used the

exception, I can begin to bring coherence and systematicity to this area of the law, a feat which

has long been assumed to be impossible. Doing so may have significant implications for our

understanding of both the public policy exception and of private international law as a

whole.152

An interpretivist approach will also be helpful in exploring the second question I posed

– what the public policy exception can tell us about the common law constitution. By

examining how judges have used the public policy exception in practice to refuse to apply

foreign law, we may be able to gain insight into how judges have understood and identified

the non-derogable, constitutional values of the common law tradition.

There also may be reasons particular to common law constitutionalism that make

interpretivism an appropriate approach for this study. Common law constitutionalism claims

to be more than a theoretical account of the rule of law in the common law tradition. It also

purports to offer a theory of adjudication – i.e. of how judges actually consider values of

legality in their judicial decision making. Indeed, one of Allan’s primary objections to a Razian

formalist approach is that formalism does not offer an effective theory of adjudication – it does

not offer guidance on how judges should confront and reason through legality problems.153 For

doctrine on its own terms, and not to ask whether the broad structural features of the exception should work differently. Despite this, interpretive approaches are not merely an exercise in Panglossian reasoning. Rather, the thought is that by attempting to analyze the law in a way that is attentive both to the law’s positive instantiation and its normative justification, we can better assess whether a particular legal doctrine is a legitimate exercise of political authority or an illegitimate, irrational, coercive, or incoherent use of mere force. 152 As I will discuss in Chapter 6, it may be possible to generalize from the conception of the exception that I offer to better understand the choice of law rules to which it is an exception. 153 Allan argues that ‘legal positivism can give no account of the practical activity of adjudication’ and refers to formal theories as ‘irredeemably theoretical.’ See TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Claredon Press, 1993) at 28; see also ibid, chs 10, 11.

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this reason, Allan’s own understanding of his view places an important emphasis on the

success of common law constitutionalism in capturing the way that judges conduct their

analysis. If common law constitutionalism can successfully pick out the fundamental values

that judges actually use in the public policy context in practice, this will offer important support

for it as a theory of adjudication and a theory of the rule of law, given the way that Allan has

understood the terms of the debate.154

An interpretive approach may also respond to an important skeptical objection that one

might make to a common law constitutionalist approach to the public policy exception. A

(Razian) skeptic might concede that it is plausible that the principles of the common law

constitution could guide the public policy inquiry. But, they might insist, this is not because

these values inhere in the concept of legality or the common law constitution, or are otherwise

an inherent part of the adjudicatory process. Rather, these values are used by courts to refuse

to apply foreign law because they are an established part of the positive law of common law

jurisdictions. While they may not be part of any written constitutional guarantees, surely it is

because of their positivity, their inclusion as part of the common law, that these rules are used

as part of the public policy exception.

To assess the validity of this objection, we must look to the case law. The common law

private law tradition contains a wide variety of legal principles, as a matter of the positive law.

But if it is only common law constitutionalist rule of law principles that end up being

considered by judges in the public policy context to be non-derogable values, while other parts

154 Note that the common law constitutionalist account of the rule of law has been subject to a barrage of critiques that I do not respond to here. Indeed, at no point in this project will I offer a defence per se of the common law constitutionalist account qua theory of the rule of law. However, this does not mean that I will offer no evaluation of this theory: in my concluding chapter, I will consider what my analysis has revealed about whether the common law constitutionalist theory has offered a coherent account of the public policy exception.

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of the positive law are not treated in this way, this offers important support for the common

law constitutionalist approach. Ultimately, then, we must look to the case law to see whether

common law constitutionalism can offer a successful theory of the public policy exception.

C. Jurisdiction Selection

When taking up an interpretivist approach, the next question to ask is which

jurisprudence am I attempting to explain, justify, and describe?155 In a field like choice of law,

where each country sets out its own conflicts rules, which jurisdictions will my analysis

address?

Since my interest is in the common law’s public policy exception, my analysis should

focus on the leading common law jurisdictions. The obvious first jurisdiction to study is

England, the legal order that has been most historically influential and important in the

development of common law rules (including conflicts rules).156 English law has also been the

site of much of the writing on common law constitutionalism,157 and thus it is an important

jurisdiction to study for the purposes of analyzing what the public policy exception can add to

the existing literature on common law constitutionalism.

I also want to develop an account that is generalizable, beyond English law, and so I

would like to examine cases from at least two jurisdictions in this project. The obvious ‘second

choice’ of jurisdiction is the United States, as it is another leading common law jurisdiction

that has had an important influence on the development of the common law. There are,

however, a few reasons why the US is not an appropriate object of study for this project. As

155 I.e. which set of ‘social facts’ one is attempting to explain, justify, and describe. 156 Note, though, that Scotland and Northern Ireland have their own choice of law rules; and so when focusing on English case law, I will not address practice in the entire United Kingdom, but only in England and Wales (which have a unified choice of law system). 157 For example, in the work of TRS Allan, Dawn Oliver, and David Dyzenhaus.

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discussed above, the public policy doctrine in the US has been influenced by Currie’s ‘interest

analysis’ approach to choice of law rules. This is distinctly a minority approach in the doctrine,

and does not represent the dominant understanding of the relationship between choice of law

and public policy across the common law. Thus, despite being an important common law

jurisdiction, the American approach to public policy is not representative of common law

jurisdictions more broadly.158 In addition, the common law constitutionalist literature (in the

form that I am considering in this project) has not been developed by US scholars, and so there

has been much less work done on whether it is a successful theory in the US context; therefore

studying what public policy can tell us about common law constitutionalism in the US would

not contribute to a pre-existing literature. For these reasons, the US is not an appropriate second

jurisdiction to study in this project.

In contrast, for each of the reasons that the US is not an appropriate jurisdiction for this

study, Canada is a highly appropriate focus of my analysis. With the exception of Quebec’s

civil law, it is a leading common law jurisdiction that retains the traditional approach to the

public policy exception.159 Common law constitutionalist theory has also been developed using

Canadian jurisprudence and by Canadian scholars.160 For these reasons, it will be the second

jurisdiction that I will consider in this dissertation.161

158 In addition, the US is a federal system where choice of law rules are developed at the state level. A comprehensive analysis of US case law would require addressing the choice of law rules of 50 different states, a difficult task that would merit its own dissertation. 159 It also has federal choice of law rules that have been ‘constitutionalized’ at the national level, unlike in the US, through the jurisprudence of the Canadian Supreme Court. See Castel, Conflict of Laws, supra note 2, ch 2. 160 See, for example, the work of David Dyzenhaus, Mark Walters, and Evan Fox-Decent. 161 Other influential Commonwealth jurisdictions that would be appropriate sources of caselaw to examine would include Australia, India, New Zealand, and South Africa; however, in order to analyze the case law on public policy as comprehensively as possible, this study will confine itself to analyzing two jurisdictions: England and Canada. At certain points, I will refer to cases from these other jurisdictions where relevant, but I will not seek to study their public policy jurisprudence comprehensively. I leave that work to future research, in which I intend to expand my analysis to study several additional jurisdictions.

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D. Analyzing Public Policy Cases from a Common Law Constitutionalist Lens: A Three-Step Process

To analyze English and Canadian public policy cases from a common law

constitutionalist perspective, this dissertation will take a three-step process. The first step will

be to identify the particular common law constitutionalist rule of law values that could apply

in the public policy context. Common law constitutionalists have formulated their accounts of

the substantive rule of law values that inhere in the common law constitution at a fairly abstract

and general level.162 Moreover, they have not developed their accounts of these values with

the public policy context – where the law under consideration is the private law of a foreign

jurisdiction – in mind.163 For this reason, the first thing I need to do to consider whether a

common law constitutionalist account can make sense of the public policy exception is to parse

closely the writing of common law constitutionalists to identify the particular rule of law

values that their account would predict would apply in the distinctive context of public policy.

After identifying these values, the second step will be to see to what extent the reasons

for using the public policy exception given by English and Canadian courts track the

substantive rule of law values identified by common law constitutionalists. I will focus on

leading public policy cases that have been the subject of scholarly analysis; however, I will

also seek to analyze the English and Canadian jurisprudence as comprehensively as possible,

discussing many hitherto unexplored cases as well. I will pay careful attention to cases that ‘go

the other way’ – cases in which judges either use the public policy exception on the basis of

162 For a critique of this aspect of common law constitutionalism, see Thomas Poole, ‘Constitutional Exceptionalism and the Common Law’ (2009) 7:2 International Journal of Constitutional Law 247 at 264; JWF Allison, The English Historical Constitution (Cambridge, UK: Cambridge University Press, 2007) at 128. However, as I argue in Chapter 2, the abstract formulation of common law constitutionalism may be by design. See infra Chapter 2, Introduction. 163 As I discuss at length in Chapter 2, common law constitutionalism has been developed by Allan and Dyzenhaus to apply to all types of law, and thus it is necessary to identify which aspects of their theory could apply in the distinctive context of public policy.

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reasons that are entirely unconnected to the common law constitutionalist account; and cases

where there was a clear violation of common law constitutionalist norms, but where the court

still applied foreign law. This approach will help to mitigate a ‘cherrypicking’ critique that

some have made of common law constitutionalism: that scholars working in this tradition tend

to focus only on cases that support their view of the doctrine.164 It of course is implausible to

suppose that all of the disparate and varied public policy cases in the English and Canadian

jurisprudence will conform to a particular theory – no interpretive approach would demand

that degree of coherence – so we should expect to see some outliers and cases that contradict

the common law constitutionalist theory. Nevertheless, I strengthen my claim by seeking to be

as comprehensive and by dealing with as many ‘hard cases’ as possible.

When selecting the cases to focus on at this second stage of my analysis, I will exclude

cases that use the phrase ‘public policy’ but are actually about conceptually distinct exceptions.

These include: the use of public policy in the recognition and enforcement of foreign

judgments context (as opposed to the choice of law context, on which I am focusing);165

situations in which foreign law is excluded on the basis of the forum’s mandatory rules, rather

than on the basis of some normative problem with the foreign law;166 situations in which

164 For discussion of this critique, see Fox-Decent, ‘Democratizing,’ supra note 120 at 527. 165 In addition to the public policy exception in choice of law, there is also a well-established public policy exception in the context of the recognition and enforcement of foreign judgments. This public policy exception arises when a court is considering whether to enforce a judgment issued by a court from another country. But this is an entirely separate and distinct stage of the analysis from choice of law, and thus we must be careful not to confuse this use of the public policy exception with the choice of law context. 166 Mandatory rules are statutes with ‘overriding effect’ that direct the courts to apply forum law and not foreign law in certain circumstances. Adrian Briggs has suggested that mandatory rules are essentially the ‘statutory equivalent’ of public policy, where ‘legislation is framed in such a way that it instructs the judge to apply it to any case which falls within its terms, without regard to choice of law.’ Briggs, Conflict of Laws, supra note 19 at 46. However, despite some similarities to public policy, mandatory rules differ in important ways. Mandatory rules are effectively ‘Step Zero’ in the choice of law architecture outlined above: if the forum has a statute that directs the court to apply forum law to a particular dispute, the court does not need to engage in any choice of law analysis at all. Thus, mandatory rules override and preempt any choice of law analysis, rather than coming at the end of the choice of law process as public policy does. They are applied not because of some public policy problem with foreign law that relates to the forum’s fundamental values, but rather because domestic statutory

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foreign law is excluded on the basis of the ‘public law taboo,’ which prohibits the application

of foreign penal or revenue law;167 and purely domestic public policy cases (as opposed to

conflicts cases) from contract and property law, in which no choice of law issue arises.168

I will also not require a court to use the phrase ‘public policy’ for it to be subject to my

analysis. Rather, the question will be whether the case conforms to the logic of the public

policy exception: where a court conducts the primary choice of law analysis, concludes that

foreign law is applicable, but ultimately declines to apply foreign law on the grounds that it

violates a fundamental value of the forum. Several important public policy cases pre-date the

widespread use of the term ‘public policy,’ and courts also occasionally use other terms to

capture the public policy exception,169 and so by limiting myself to cases that use the phrase

‘public policy’ I would miss key examples of where courts have refused to apply foreign law

on public policy grounds.

After exploring whether the public policy jurisprudence can be explained by the

common law constitutionalist account of the rule of law, I then take a step back in the third

law requires the court not to consider foreign law at all. Mandatory rules derive from an interpretation of the scope of domestic legislation, and thus must be followed because of parliamentary supremacy, not because the court concludes that there is some normative problem with the content of foreign law (as in context of the public policy exception). They are not developed by courts through common law reasoning (as public policy is) but rather are established through legislation. 167 The ‘public law taboo’ in choice of law is the common law rule that courts will not apply foreign public law through the choice of law process, including foreign penal and revenue law. While the merits, legitimacy, and boundaries of this rule have been subject to debate (see e.g. William S Dodge, ‘Breaking the Public Law Taboo’ (2003) 43 Harv Intl LJ 161), it remains a doctrine that is entirely distinct from the public policy exception. The public law taboo prohibits common law courts from applying foreign law on the basis that the law in question is public, and that to apply it would in some sense interfere with the sovereignty of another state. This is clearly a different objection from public policy, which prohibits applying foreign law on the basis that there is some sort of substantive problem with foreign law that makes it normatively objectionable for the forum to apply it. 168 As discussed above, the public policy exception in domestic contract and property law is separate and distinct from the choice of law public policy exception. See supra notes 52-54. 169 Such as the term ‘substantial justice’ in English jurisprudence, although this is largely used in the recognition context: see Pemberton v Hughes, [1899] 1 Ch 781 (CA (Eng)); Adams v Cape Industries Plc, [1990] Ch 433 (CA (Eng)).

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stage of this project to consider what the public policy jurisprudence explored in the second

stage of the project can tell us about common law constitutionalism.

Part V: Dissertation Overview

To consider whether the common law constitutionalist perspective can offer insight

into the theory and practice of the public policy exception – and to see what insight the public

policy exception can offer to common law constitutionalists – this dissertation will proceed in

five subsequent chapters.

I begin in Chapter 2 by exploring the common law constitutionalist account in greater

detail. Since this study is the first scholarly attempt to use the common law constitutionalist

literature to explore conflicts doctrine in general and the public policy exception in particular,

and since that common law constitutionalism was not developed as a theory to apply to the

conflicts context, I must first explore how the common law constitutionalist account of the rule

of law could be applicable to private international law. Thus, in Chapter 2, I seek to identify

which principles of the unwritten common law constitution could potentially apply in the

choice of law/public policy context. I closely examine the writings of common law

constitutionalists to identify the relevant principles, focusing on the work of the two leading

theorists in this tradition, TRS Allan and David Dyzenhaus. These common law

constitutionalists claim that the rule of law requires the law to secure the freedom as

independence of its subjects. The law must respect the autonomy and dignity of persons by

ensuring that they are not subject to arbitrary power or domination by others. This entails

securing a domain of freedom in which individuals can be free from the choices of others (the

liberty dimension of the account) and protected from arbitrary discrimination and differential

treatment (the equality dimension of the account). Both of these dimensions of the common

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law constitutionalist account of the rule of law are potentially relevant to the evaluation of

foreign private law in the public policy context, and thus we can examine both of these

principles in turn to see whether they are reflected in the analysis that common law courts use

when applying the public policy exception.

In Chapter 3, I examine the liberty dimension of the common law constitutionalist

account of the rule of law to see whether the use of the public policy exception tracks this

aspect of the theory. I examine three canonical public policy cases in the common law tradition:

Somerset v Stewart,170 Kaufman v Gerson,171 and The Halley.172 These three English cases are

among the most well-known common law choice of law judgments, but they are not thought

to be motivated by the same normative principle as each other (or indeed to be related to one

another in any way). In my analysis, however, I demonstrate that each case is in fact an

example of a common law court refusing to apply a foreign law that violates the rule of law.

More specifically, in each of these three cases, public policy is invoked on the basis of reasons

that are connected to the liberty dimension of the common law constitutionalist account of the

rule of law. In these leading cases, and in a range of other less well known public policy cases,

we can see the public policy exception operating as a rule of law check on the application of

foreign law in the choice of law process.

Chapter 4 examines the equality dimension of the common law constitutionalist

account. This chapter focuses on three important common law cases: Hincks v Gallardo,173

Hyde v Hyde,174 and Chetti v Chetti.175 By reading these cases together, I show that there is an

170 [1772] Lofft 1 (HL (Eng)). 171 [1904] 1 KB 591. 172 [1868] LR 2 PC 193. 173 2013 ONSC 129. 174 (1866) [LR] 1 P & D 130 (Courts of Probate and Divorce). 175 1909] P 67 (Probate, Divorce & Admiralty Division).

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important strand of public policy jurisprudence according to which foreign laws that

discriminate on the basis of some arbitrary characteristic – in violation of the common law

constitutionalist equality principle – are refused application as a matter of public policy. I also

expand my outlook to consider a wide range of other lesser-known cases where we can see the

equality principle at work, in order to demonstrate that the normative principle that the core

cases illustrate has been applied more broadly. This chapter will thus continue to make the

case that I began to establish in Chapter 3: that we can observe a strong connection between

the common law constitutionalist account of the rule of law and the use of the public policy

exception in practice. As the chapter demonstrates, there is an important (and as yet unnoticed)

strand of cases in which the equality dimension of the common law constitutionalist account

of the rule of law has been used to refuse application to foreign law that discriminates on an

arbitrary basis.

Chapter 5 confronts a critical ‘hard case’ for my common law constitutionalist

approach: the leading English public policy judgment in Kuwait Airways.176 While Kuwait

Airways is perhaps the best known and most important contemporary public policy judgment,

the reasons given by the House of Lords in the case do not seem to conform to my rule of law

account of public policy.177 Despite this initial impression, however, I argue that the case is in

fact an important example of how the common law constitutionalist account of the rule of law

forms the basis of common law courts’ analysis of foreign law under the public policy

exception.

176 Kuwait Airways, House of Lords, supra note 38. 177 Despite an overt reference to the rule of law on the face of the judgment, I argue in Chapter 5 that the logic of the case poses an important challenge to my rule of law account of the exception.

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Finally, in Chapter 6, I summarize my analysis and consider its implications for

common law constitutionalism. I also consider several directions for future research, such as

how some additional ‘hard cases’ fit within my account, and several potential implications of

my account for private international law theory more generally.

Conclusion

The public policy exception has long been thought to work contrary to the rule of law.

In this dissertation, however, I offer a new understanding of the relationship between the public

policy exception and the rule of law. When we consider the exception through a common law

constitutionalist lens, we can understand the exception as a means through which common law

courts can ensure that any foreign law they apply does not violate the substantive requirements

of the rule of law in the common law tradition – that is, the unwritten requirements of the

common law constitution.

The subsequent chapters of this dissertation will explore whether my proposed

common law constitutionalist account of the exception’s use is persuasive and reflects the

practice of common law courts; and whether the public policy exception can shed light on the

fundamental values of the common law tradition. Given that my claim is that the common law

constitutionalist conception of the rule of law animates the use of the public policy exception

when analyzing foreign law, the first step is to identify the principles of the common law

constitutionalist account that would be applicable in the public policy context – a task I take

up in Chapter 2.

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CHAPTER 2

COMMON LAW CONSTITUTIONALISM AND THE RULE OF LAW

IN THE CONTEXT OF PUBLIC POLICY Introduction

In Chapter 1, I proposed a novel way of thinking about the public policy exception in

choice of law: my claim is that common law courts invoke the public policy exception when

foreign law violates the substantive rule of law principles of the common law constitution. One

would assume that, to test this theory, the next stage of the analysis would be to compare the

rule of law principles identified by common law constitutionalists with the way that courts

have used the public policy exception in practice. However, one further step is necessary

before we can make this comparison: we must first identify the relevant rule of law principles

from the common law constitutionalist account which are relevant to the public policy inquiry.

This task is complicated by several factors.

The first complicating factor relates to the fact that common law constitutionalists have

been criticized for failing to clearly articulate specific rule of law principles. As discussed in

Chapter 1, common law constitutionalists offer a theory of the rule of law in the common law

tradition.1 According to scholars such as TRS Allan and David Dyzenhaus, the piecemeal

development of the common law has resulted in the accretion of certain core principles of

legality – that is, requirements of the rule of law – that judges must take into account when

1 As Evan Fox-Decent puts it. Evan Fox-Decent, ‘Democratizing Common Law Constitutionalism’ (2010) 55 McGill LJ 511 at 513. As TRS Allan writes in a representative passage, ‘It is in this fundamental sense that Britain has a common law constitution: the ideas and values of which the rule of law consists are reflected and embedded in the ordinary common law.’ TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 19 [Allan, Constitutional Justice].

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adjudicating. These unwritten norms, developed through judicial practice over centuries,2

together form the common law constitution. These constitutional principles of legality are

substantive norms that must be complied with if a government wishes to rule through law, and

together they ‘make the exercise of legal authority legitimate.’3

A frequent critique of this theory, however, is that common law constitutionalists do

not do enough to spell out what the rule of law principles that constitute the common law

constitution actually are. Thomas Poole, for example, has argued that common law

constitutionalists such as Dyzenhaus fail to specify ‘what those hard-edged values are which

derive from the common law and give substance to the rule of law – the pivotal moment in the

theory [of common law constitutionalism].’4 While the idea that there are deep-rooted values

of legality embedded in the common law is in theory an attractive position, Poole argues, the

common law constitutionalists flounder when it comes to actually identifying the relevant rule

of law principles.5

2 This is what Thomas Poole calls the ‘argument from history.’ Thomas Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford J Leg Stud 435 [Poole, ‘Back to the Future?’]. 3 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge, UK: Cambridge University Press, 2006) at 5 [Dyzenhaus, Constitution of Law]. Dyzenhaus argues that the rule of law is ‘constitutive’ of legal authority. Ibid at 8ff. These principles are not derived from the common law in particular, though they are instantiated in it, but rather they are moral principles derived from the very form of law itself. ‘When a society chooses to rule through law, it also chooses to subject itself to the constitutional principles of the rule of law, whether or not it articulates those principles in a bill of rights’ (ibid at 4). 4 Thomas Poole, ‘Constitutional Exceptionalism and the Common Law’ (2009) 7:2 International Journal of Constitutional Law 247 at 264 [Poole, ‘Constitutional Exceptionalism’]. 5 Ibid at 266: ‘To the uninitiated, common law constitutionalism often seems like an exercise in wish fulfillment. We are drawn to the idea that there are some deep, transcendental values in the common law, against which we might measure governmental action; however, when we look for them, we do not quite know where to find them. And the values we do seem to find are either lacking in specificity and so incapable of acting as true guiding principles, or else have little or no historical pedigree and so conflict with the core idea that the values in question are embedded in a common law framework that has evolved over the course of social and political development thereby reflecting deep-rooted mores.’ See also JWF Allison, The English Historical Constitution (Cambridge, UK: Cambridge University Press, 2007) at 128, who argues that the common law constitution ‘is lacking in systemic elaboration and limited in express normativity.’

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This aspect of common law constitutionalism – the underspecification of the relevant

rule of law principles – may actually be by design.6 One of Dyzenhaus’ critiques of positivist

accounts of the rule of law is that they reduce legality to determinacy, and therefore mistakenly

equate the rule of law with lists of ‘criteria or principles that seek to ensure that particular laws

are as determinate as possible.’7 By contrast, non-positivist conceptions of the rule of law (such

as that offered by common law constitutionalists) have a very different aim: they offer an

account of the moral aims of rule through law that does not make determinacy the overriding

principle. Such a conception resists the idea that the rule of law can be specified through a list

of criteria that can be fixed ex ante.8 Instead, this approach to the rule of law requires reasoned

interpretation with an eye to the moral aims of legality.9 This resistance to explicitly

enumerating the common law’s principles of legality does not mean, however, that the

common law constitutionalists do not think there are such values. Scholars working in this

6 For example, in introduction of The Constitution of Law, Dyzenhaus explicitly states that he will not ‘at any point’ go into much detail regarding the content of the rule of law. Dyzenhaus, Constitution of Law, supra note 3 at 12. 7 David Dyzenhaus, ‘The Compulsion of Legality’ in Victor Ramraj, ed, Emergencies and the Limits of Legality (Cambridge, UK: Cambridge University Press, 2008) 31 at 57 [Dyzenhaus, ‘Compulsion of Legality’]. 8 This is what Kristen Rundle has called a ‘checklist’ approach to the rule of law. Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford: Hart Publishing, 2012) at 92 [Rundle, Forms Liberate]. 9 What Dyzenhaus calls a ‘culture of legality.’ As Dyzenhaus writes, the principles that constitute the rule of law ‘do not have the kind of judicially fixed content which liberals desire – they are not principles with a content against which statutes or executive decisions must not offend if they are to be valid. Rather they are principles which make internal to the law the ideals of both democracy and administrative law – participation and accountability.’ David Dyzenhaus, ‘Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?’ in Christopher Forsyth, ed, Judicial Review and the Constitution (Portland: Hart Publishing, 2000) 141 at 170 [Dyzenhaus, ‘Form and Substance’] [Forsyth, Judicial Review and the Constitution].

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tradition frequently refer to the ‘values,’10 ‘norms,’11 and ‘principles’12 that constitute their

conception of the rule of law, and thus they clearly accept that such principles exist.13

While this lack of emphasis on articulating specific principles of legality may be

sensible from the perspective of common law constitutionalism, it poses an important

challenge for my project: without clearly identifying the rule of law principles of the common

law constitution, I cannot test my claim that it is those principles that animate the public policy

inquiry. My theory therefore requires me to examine closely the work of common law

constitutionalists to identify what they understand to be the core principles of legality, before

assessing whether those principles are invoked in the public policy context in practice.14

The second obstacle facing my project is that the various members of the common law

constitutionalist tradition disagree (at least to some extent) about the content of the rule of law.

Common law constitutionalists are a heterogeneous lot. Scholars who are identified as part of

10 See e.g. discussion in Dawn Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999) at 57 [Oliver, Common Values]. 11 See e.g. TRS Allan, ‘The Rule of Law as the Rule of Private Law’ in Lisa M Austin & Dennis Klimchuk, Private Law and the Rule of Law (Oxford: Oxford University Press, 2014) 67 at 88ff [Allan, ‘Rule of Law as Rule of Private Law] [Austin & Klimchuk, Private Law and the Rule of Law]; Mark D Walters, ‘The Unwritten Constitution as a Legal Concept’ in David Dyzenhaus & Malcolm Thorburn, Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016) 33 [Dyzenhaus & Thorburn, Philosophical Foundations]. 12 See e.g. Jeffrey Jowell, ‘The Legal Control of Administrative Discretion’ (1973) Public Law 178; Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) [Dworkin, Taking Rights Seriously]. 13 Dyzenhaus has argued that natural law theorists must provide a ‘sketch’ of the relevant theories that animate their position. David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2d ed (Oxford: Oxford University Press, 2010) at viii-ix [Dyzenhaus, Hard Cases in Wicked Legal Systems, 2d ed]: he writes that natural law theories are distinguished by inter alia the fact that they ‘must sketch the principles immanent to the practice of legality that account for the specific legitimacy of legality, that is, for the authority of law.’ TRS Allan has argued that the only way to respond to skepticism about the rule of law as a workable concept is to ‘offer a specific interpretation for inspection.’ Allan, Constitutional Justice, supra note 1 at 1. Scholars in this tradition also discuss and debate the content of the rule of law, trying to identify the moral objectives of the rule of law. Allan, for example, attempts to ‘demonstrate [the rule of law’s] ability to give a coherent, unified, and attractive account of some of the principal questions of legal authority and personal freedom.’ Ibid. 14 I will therefore both be making an argument about the content of common law constitutionalism and then assessing whether that content is relied on in judicial reasoning about public policy. This analysis of common law constitutionalism will be part of the contribution of this project. See infra Chapter 6.

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this tradition – including TRS Allan, David Dyzenhaus, John Laws, Dawn Oliver, and Evan

Fox-Decent – discuss different aspects of the rule of law and define the concept in somewhat

different ways. Most notably, the two leading thinkers in the tradition, Allan and Dyzenhaus,

agree that Allan’s account is considerably ‘thicker’ than Dyzenhaus’ version of the theory,

which is ‘thinner,’ more ‘formal,’ and less ‘liberal.’15 Common law constitutionalists are also

catholic in their intellectual influences.16 While there are clearly commonalities among

thinkers in the common law constitutionalist tradition, such that it can be identified as a school

of thought,17 these differences make identifying a uniform account of the rule of law among

these theorists a challenge.

Common law constitutionalists also present different views of the appropriate remedy

for a rule of law violation – that is, what a court should do if a law they are tasked with applying

violates the rule of law. Allan has frequently argued for a strong form of judicial review that

allows courts to invalidate particular laws that violate the rule of law, even if this power is not

granted by positive law.18 Dyzenhaus, by contrast, has advocated for a weaker form of judicial

review that does not necessitate giving judges the power to invalidate unjust laws.19 This

disagreement about remedies also poses an obstacle to my attempt to compare common law

constitutionalist accounts of the rule of law with the public policy exception. If theorists in this

tradition disagree about what judges are supposed to do in the face of a rule of law violation,

this makes it difficult to know whether and when common law constitutionalism would

countenance refusing to apply foreign law that violates the rule of law.

15 See infra Part IV.A. 16 Their ecumenical approach draws from Dicey, Hayek, Fuller, Kant, Dworkin, Pettit, Hobbes, and Oakeshott, borrowing arguments and themes from this diverse range of thinkers. 17 Poole has argued that despite their differences, common law constitutionalists share a core argument. See Poole, ‘Back to the Future?’ supra note 2 at 440-441. 18 See infra Part IV.B. 19 See infra Part IV.B.

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A final obstacle to comparing common law constitutionalist rule of law principles and

the public policy exception is that even if we can identify the principles of the common law

constitutionalist account of the rule of law, not all of these principles will apply in the public

policy context. The public policy exception has certain structural features that mean that only

certain types of rule of law principles could possibly be relevant to its use; for example, the

public policy exception in choice of law does not address procedural law,20 but rather is

concerned with substantive aspects of foreign law. To the extent that common law

constitutionalists have identified aspects of the rule of law that guarantee procedural rights,

these will not be relevant in the public policy context.21 Thus we must identify the common

law constitutionalist rule of law principles that could actually apply in the public policy

context. This task is also necessary because no prior scholar has sought to apply common law

constitutionalism to private international law, choice of law, or the public policy exception, so

there is no prior account of how a common law constitutionalist lens would apply to public

policy on which I can rely.

These obstacles must be addressed before common law rule of law principles and

judicial reasoning about the public policy exception can be compared. As such, it will be the

task of this chapter to identify the common law constitutionalist rule of law principles that are

potentially applicable in the context of public policy. To do this, I will focus on the work of

the two leading theorists in this tradition, TRS Allan and David Dyzenhaus. I will argue that

these two theorists, despite their different approaches to the rule of law, nevertheless would

agree on what the content of the applicable principles of the rule of law in the public policy

20 See infra Part I.B. Procedural rights do not generally arise in the choice of law context because under standard choice of law rules, procedural matters are addressed by the forum’s law. 21 However, since some common law constitutionalists deny that there is a distinction between procedure and substance, some procedural principles may still be relevant. Dyzenhaus, Constitution of Law, supra note 3 at 2.

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context would be; and that they would concur regarding the appropriate remedy for a rule of

law violation in the public policy context. Both theorists are committed to a moral theory of

the rule of law in which principles of legality protect individuals from arbitrary exercises of

power. And both agree that the law must protect a republican conception of freedom to avoid

arbitrary exercises of power. Thus both would accept that certain core values that can be

derived from this account must be respected by foreign law in order for it to be applied in a

common law forum.

I begin in Part I by outlining the structural aspects of the public policy exception that

make only certain types of rule of law principles potentially applicable to its use.22 According

to widely accepted doctrine, the public policy exception applies to substantive aspects of

private law in a transnational context. The standard remedy for a violation of the exception is

that the foreign law must be refused application. Thus any rule of law principles we identify

must be applicable in this context.

In Part II, I explore Allan’s account of the rule of law. (I focus on Allan’s account

because his has been called ‘the most developed and powerful defence of common law

constitutionalism.’23) Drawing primarily from the republican tradition in political theory, Allan

argues for a conception of the rule of law that prevents individuals from being subject to

arbitrary interference by both public and private actors – what is called ‘domination’ in

republican parlance. The rule of law therefore requires that individuals’ ‘freedom as

independence’ be secured. Preventing individuals from being subject to arbitrary interference

(and thus preserving their independence) has two dimensions: a liberty dimension and an

22 I describe these structural features first in order to focus our inquiry – so we know what type of rule of law principles we must identify. 23 Stuart Lakin, ‘Defending and Contesting the Sovereignty of Law: The Public Lawyer as Interpretivist’ (2015) 78:3 Mod L Rev 549 at 570.

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equality dimension. The law must protect a domain of liberty that allows individuals to be free

from the interference or domination of others, which includes protecting the basic human rights

and freedoms of persons. And the law must also protect the equality of persons, prohibiting

discriminatory (and thus arbitrary) restrictions on the liberty of the law’s subjects. This

requires the rule of law to adhere to certain formal and substantive requirements.

With Allan’s theory of the rule of law set out, I turn in Part III to consider how his

account would apply in the public policy context. I argue that Allan’s theory that the rule of

law must secure each person’s freedom as independence would generate mandatory

requirements for foreign private law along both his liberty dimension and his equality

dimension. On the liberty dimension, Allan’s theory would require foreign law to: (1) treat

each person as sui juris, or as their own master; (2) impose a consent requirement, ensuring

that individuals cannot be interfered with by others without their consent; and (3) impose a

responsibility requirement for liability. On the equality dimension, Allan’s theory would

require foreign private law to not discriminate among individuals on the basis of immutable

characteristics such as race, gender, or sexual orientation.

After setting out Allan’s account, I turn in Part IV to his disagreement with Dyzenhaus.

I argue that, despite distinctions between their respective accounts, Dyzenhaus would accept

that the relevant principles from Allan’s account are essential aspects of the rule of law that

judges must ensure are respected by the positive law they apply. Finally, in Part V, I briefly

turn to the work of other common law constitutionalists. While the chapter focuses on the work

of Allan and Dyzenhaus, I argue that in broad strokes, other thinkers in this tradition would

accept the account of the rule of law that I have articulated.

Part I: The Structural Features of Public Policy

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Theories of the rule of law, including the common law constitutionalist account, are

typically developed to apply generally to all exercises of public power24 – they are not

developed with the structural features of any one doctrine in mind.25 But the particular features

of the public policy exception may mean that only certain types of rule of law values could

potentially be applicable in the public policy context. This part identifies these structural

features of the public policy exception.

A. Private Law versus Public Law

The first salient feature of the public policy exception is that it is used to refuse to apply

foreign private law, as opposed to public law. In focusing on this structural feature, I do not

wish to defend a strict or acoustic separation between public and private law, given that the

public/private distinction is a matter of fierce scholarly debate, in private international law and

beyond.26 And there is clearly (as Aharon Barak has put it) a broad ‘“twilight” zone’ of

ambiguity between public and private.27

But at a high level of generality, choice of law doctrine is concerned with which state’s

private law should apply to resolve a dispute that is the traditional stuff of private law: tort,

contract, property, and family law disputes, inter alia. These private law categories typically

24 By an exercise of public power, I mean any exercise of legal authority through promulgated law, either public or private – what David Dyzenhaus calls publica lex. David Dyzenhaus, ‘Liberty and Legal Form’ in Austin & Klimchuk, Private Law and the Rule of Law, supra note 11, 92 at 93 [Dyzenhaus, ‘Liberty and Legal Form’]. 25 One may ask why it is that I take these features of the public policy exception as given, and do not question whether the exception should operate as it does. The reason I do so is because, as I discuss in Chapter 1, I am trying to understand the public policy doctrine as it currently exists and to provide the best possible account for how it operates, consistent with a broadly interpretivist approach. 26 For perhaps the most famous critique of this distinction, see Duncan Kennedy, ‘The Stages of the Decline of the Public/Private Distinction’ (1982) 130 U Pa L Rev 1349. This distinction is also controversial within private international law discourse as well. See e.g. Roxana Banu, From Conflicts of Sovereignty to Relationships: Recovering Nineteenth Century Relational Internationalist Perspectives in Private International Law (Oxford: Oxford University Press, 2018) [Banu, From Conflicts of Sovereignty to Relationships]; Hanoch Dagan & Avihay Dorfman, ‘Interpersonal Human Rights’ (2018) 51 Cornell Intl LJ 361; Horatia Muir Watt, ‘Private International Law Beyond the Schism’ (2011) 2:3 Transnational Legal Theory 347. 27 Justice Aharon Barak, ‘Constitutional Human Rights and Private Law’ (1996) 3:2 Rev Const Stud 218 at 222 [Barak, ‘Human Rights and Private Law’].

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relate (again at a high level of generality) to the way in which public power structures the

horizontal legal relationships between individual legal subjects.28

While choice of law rules frequently direct courts to apply foreign private law, those

same rules also state that common law courts should not apply foreign public law, such as

foreign tax or criminal law.29 This doctrine what is known as the ‘public law taboo.’30 Foreign

public law – law that structures the vertical relationship between governor and governed – is

therefore not considered in standard choice of law doctrine. So when the public policy

exception is raised as a part of the choice of law analysis, the focus is on whether there is a

normative problem with foreign private law, not foreign public law.

This structural feature of the exception has important implications for which rule of

law values might be invoked when assessing foreign law for legality problems. As scholars

have noted, the rule of law has most frequently been analyzed in the context of public law.31

Scholars have focused on the principles of legality that are attendant to the vertical relationship

28 This can of course include legislation that defines horizontal relationships and thus what private rights people are entitled to. 29 At least not today or in the common law, as a general matter. However, there is certainly historical diversity on this point, such as in the Bustamante Code, a largely rejected draft treaty on private international law in the Americas, proposed in the early twentieth century. Convention on Private International Law (Bustamante Code), 20 February 1928, OASTS 34 (entered into force 25 November 1928). 30 See e.g. J-G Castel, Canadian Conflict of Laws, 4th ed (Toronto and Vancouver: Buttersworth, 1997) at 167-171 [Castel, Conflict of Laws]; Sir Lawrence Collins, Dicey, Morris and Collins on The Conflict of Laws, 14th ed (London: Sweet & Maxwell, 2006) vol 1 at 100-121 [Collins, Conflict of Laws]; William S Dodge, ‘Breaking the Public Law Taboo’ (2002) 43 Harv Intl LJ 161; Philip J McConnaughay, ‘Reviving the “Public Law Taboo” in International Conflict of Laws’ (1999) 35 Stan J Intl L 255. But see USA v Ivey (1995), 130 DLR (4th) 674, 26 OR (3d) 533 (Gen Div), affd (1996) 30 OR (3d) 370 (CA). 31 As Allan notes, ‘[t]he rule of law is a principle or doctrine usually associated mainly with public law.’ Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 67. As Austin and Klimchuk put it, this can be called the ‘public law presumption’ in rule of law scholarship. Lisa M Austin & Dennis Klimchuk, ‘Introduction’ in Austin & Klimchuk, Private Law and the Rule of Law, supra note 11, 1 at 1. See also William Lucy, ‘The Rule of Law and Private Law’ in Austin & Klimchuk, Private Law and the Rule of Law, supra note 11, 41; Dennis Klimchuk, ‘Equity and the Rule of Law’ in Austin & Klimchuk, Private Law and the Rule of Law, supra note 11, 247; Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24. This work is part of a recent turn to considering how the rule of law operates in the context of private law. However, for a statement of the opposite presumption – that the rule of law is presumed to be a private law value – see Jeremy Waldron, ‘The Rule of Law in Public Law’ in Mark Elliot & David Feldman, eds, The Cambridge Companion to Public Law (Cambridge, UK: Cambridge University Press, 2015) 56 at 56.

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between ruler and ruled, as this is thought to typify the exercise of public legal powers.32 This

generalization also holds true of common law constitutionalists, who have primarily (although

not exclusively, as we shall see) developed their rule of law account in the context of

constitutional and administrative law.33

Scholars have typically assumed that the rule of law should apply to any exercise of

public power, including in the private law context.34 But there is good reason to think that rule

of law principles that are developed with a public law context in mind will not necessarily

apply, or will not necessarily apply in the same way, in the context of private law. For example,

take the idea that the rule of law is concerned with safeguarding fundamental human rights, an

idea that (as we shall see) TRS Allan has argued for.35 This requirement is straightforward in

the context of public law, where constitutional rights are generally thought to operate on a

vertical basis, constraining the way in which the government treats individuals. But when

translating this idea to private law, one encounters an important debate in constitutional theory

about the extent to which constitutional or human rights apply horizontally in the realm of

private law.36 If constitutional rights are those duties that a government owes to citizens under

32 For example, we can observe this tendency in one of the most famous works on the rule of law, Lon L Fuller, The Morality of Law, rev ed (New Haven: Yale University Press, 1946) [Fuller, Morality of Law]. Fuller emphasizes the vertical relationship between governor and governed, even though he likely thought the private law context to be primary, as David Dyzenhaus has argued: Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 97-99. This assumption is generated by the fact that the rule of law is normally understood to be concerned with the principles of legality that are necessarily attendant to the act of legislating – the exercise of legal authority by the government vis-à-vis its citizens – and thus the rule of law appears to be focused on the state-citizen relations that characterize public law, as opposed to the horizontal, interpersonal relations that characterize private law, even though private law is of course frequently established through legislation. Austin and Klimchuk’s edited volume can be understood as a response to this assumption: Austin & Klimchuk, Private Law and the Rule of Law, supra note 11. 33 See infra Part III.B, describing Allan’s attention to the private law context. 34 This is the public law presumption to which Austin and Klimchuk allude. Austin & Klimchuk, Private Law and the Rule of Law, supra note 11 at 1. 35 See infra Part II. 36 See e.g. Barak, ‘Human Rights and Private Law,’ supra note 27; Daniel Freidmann & Daphne Barak-Erez, eds, Human Rights in Private Law (Oxford: Hart Publishing, 2001) [Freidmann & Barak-Erez, Human Rights in Private Law]; Jean Thomas, Public Rights, Private Relations (Oxford: Oxford University Press, 2015) [Thomas, Public Rights, Private Relations].

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its authority, it is unclear how those duties translate to the horizontal relationship between

private persons. Again, this is not to assume any strict or acoustic separation between public

and private law. But there is scholarly consensus regarding the need to consider carefully how

individual rights guarantees apply in the context of private law – we cannot assume that rights

that are guaranteed in the context of public law will automatically translate to the private law

context.37 And if rule of law principles do not automatically translate from public to private

law contexts, we must be careful to sort through which principles could apply to the distinctive

private law context in which public policy is invoked to refuse to apply foreign law.

B. Substantive versus Procedural Law

A second essential aspect of the public policy exception is that it is used when there is

a problem with substantive foreign law, such as the elements of a tort or the requirements of

forming a contract. In contrast, public policy (at the choice of law stage) is not used to assess

foreign procedural law.38 Under typical choice of law rules, procedural matters are decided by

the law of the forum; it is only substantive foreign private law that is applied to resolve private

law disputes with a factual connection to another jurisdiction.39 This means that if we are to

identify the rule of law principles that could apply in the public policy context, we must focus

on those with a substantive dimension. Attention to this issue is necessary in the common law

37 This is recognized in the burgeoning literature on the rule of law in the context of private law. See supra note 31. 38 See supra Chapter 1. As with the distinction between public and private law, I do not mean to suggest that there is an easy or straightforward distinction between substance and procedure. Indeed, this distinction has been frequently questioned, including by those in the common law constitutionalist tradition. See Dyzenhaus, Constitution of Law, supra note 3 at 2. This distinction is also frequently difficult to maintain in the conflicts context, as numerous cases grappling with ‘characterization’ issue have shown. However, in the particular context of the public policy exception, this distinction is clearly relevant because there has been no procedure undertaken by a foreign court at the point in the analysis when public policy is raised. 39 See Castel, Conflict of Laws, supra note 30 at 125-153; Collins, Conflict of Laws, supra note 30 at 177-206. While there is a long-standing and active debate on the substance/procedure distinction in conflict of laws, procedural rules that are decided by the lex fori are generally those that relate to the process of the litigation, such as evidentiary rules on admissibility.

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constitutionalist context, where scholars have argued that the rule of law has both substantive

and procedural implications for the way in which the law’s subjects must be treated.40

C. Transnational versus Domestic

A third important structural feature of the public policy exception is that it operates in

a transnational context, where courts frequently deal with events that took place outside of the

forum state’s territory or that involve non-citizens. Moreover, the public policy inquiry

concerns whether some foreign law (rather than the forum’s law) violates the forum’s

fundamental values. Thus if the rule of law is applicable to the public policy exception, it must

contain principles that apply even in these transnational contexts; the relevant principles of

legality that a theory of the rule of law identifies must apply to any law applied by the courts,

to any of the law’s subjects.

It is not immediately clear that the common law constitutionalist account of the rule of

law is meant to apply in the transnational context. For example, TRS Allan frequently invokes

the idea of ‘equal citizenship’ to generate his account.41 While this reference to citizenship

does not necessarily mean that Allan confines the rule of law to purely domestic legal matters,42

it does mean that we must be careful to identify rule of law values that common law

constitutionalists think could plausibly be employed in transnational circumstances.

40 For example, see Allan, Constitutional Justice, supra note 1, in which Allan focuses on procedural guarantees generated by the rule of law. This issue is also further complicated by debates among common law constitutionalists about whether any rule of law requirements that go to the requisite content of the law are generated by a purely procedural account of the rule of law. See Dyzenhaus, Constitution of Law, supra note 3 at 2. 41 See e.g. TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford: Oxford University Press, 2013) at 92, 95, 100, 124, etc [Allan, Sovereignty of Law]; TRS Allan, ‘Text, Context, and Constitution: The Common Law as Public Reason’ in Douglas E Edlin, ed, Common Law Theory (Cambridge, UK: Cambridge University Press, 2007) 185 at 201 [TRS Allan, ‘Text, Context, and Constitution’]; see also, Dyzenhaus, ‘Form and Substance,’ supra note 9 at 171, 172, accepting this aspect of Allan’s account. 42 For a discussion of the possibilities of ‘postnational citizenship’ generated by the way in which private international law constructs the private side of citizenship, see Karen Knop, ‘Citizenship, Public and Private’ (2008) 71 Law & Contemp Probs 309.

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D. Remedial Requirements

Finally, a fourth structural feature of the public policy exception is its remedial aspect.

Under current common law doctrine, if foreign private law violates the public policy exception,

it is refused application, and the court will instead apply the law of the forum to resolve the

dispute.43 This means that there is only one remedy available if foreign law violates the public

policy exception: non-application.44 When we turn to examining the views of common law

constitutionalists, then, we must identify which rule of law principles they claim would result

in a law’s non-application. This is complicated, however, by an important debate among

common law constitutionalists regarding how judges should respond to laws that violate the

rule of law. Allan has argued that common law judges have the power, in certain extraordinary

circumstances, to invalidate laws that violate the rule of law; in less extraordinary

circumstances, judges should simply interpret laws so that they are in compliance with the

requirements of the rule of law.45 Dyzenhaus, by contrast, has argued for a weaker form of

judicial review; instead of invalidating laws, he has argued that judges should use their

interpretative powers to bring the law into conformity with the rule of law, or should indicate

that a rule of law failure has occurred without necessarily declaring a law invalid.46

This debate may be partially avoided (as we shall see) because non-application is not

the same thing as invalidating or striking down a law: non-application simply says that the law

cannot be applied in the forum in the context of a particular dispute, but it says nothing about

43 This is the case in England and Canada. In some jurisdictions, the dispute will be dismissed instead of being resolved according to the law of the forum. 44 There is some historical literature in the conflict of laws that suggests alternatives to non-application. For example, see Arthur von Mehren, ‘Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law Methodology’ (1974) 88 Harv L Rev 347; Banu, From Conflicts of Sovereignty to Relationships, supra note 26 (discussing Jitta’s work on blending different national laws). However, this is not the contemporary approach. 45 See infra Part II.E. 46 See infra Part IV.B.

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its validity in other contexts. By contrast, striking down a law renders it invalid in all the

circumstances.47 But non-application and invalidating have a similar form: both offer a

‘thumbs up/thumbs down’ assessment of whether a law can apply. Rule of law principles that

require a particular law to be invalidated are therefore likely to be most relevant to the public

policy inquiry. We should also focus on those rule of law principles that result in invalidity

because Allan and Dyzenhaus’ alternative – that courts should interpret the impugned law in

a manner consistent with rule of law principles – is not employed in the public policy context.48

When courts invoke the public policy exception, they take the foreign law as given, and the

only question is whether or not to apply it. This means that to the extent rule of law values are

at play in the public policy exception, they must be ones that allow courts to decide whether a

law can apply at all.

Part II: TRS Allan’s Theory of the Rule of Law

Having established which type of rule of law principles could be relevant in the public

policy context, we can now turn to the common law constitutionalist account of the rule of

law. As noted above, my analysis will focus on the work of TRS Allan, the most prolific and

prominent of contemporary thinkers in this tradition.

47 Interestingly, the extent to which this distinction is complete relates to an important historical debate among scholars of private international law about whether public policy is actually a statement about invalidity. Jitta for example argued that public policy is a faulty concept because it gives the impression that the foreign law is ‘invalid’ rather than that it cannot be applied by the forum in one particular instance. However I think the contemporary doctrine clearly supports the distinction between invalidity and non-application, as there is no claim to render the law inapplicable in all the circumstances, and courts are generally careful to note the limited nature of their conclusion regarding foreign law. 48 For exceptions, see supra note 44. We might also think of depecage and renvoi as techniques that allow for such interpretive moves. But the dominant approach to the doctrine is that interpretation is not available in the public policy context.

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Allan has articulated his account of common law constitutionalism in three

monographs and numerous articles, written over the course of several decades.49 Throughout

this period, Allan’s presentation of his view has evolved.50 For example, in his most recent

writings, he has emphasized the republican foundations of his account of the rule of law, an

argument that is absent from his earlier contributions.51 In my account of his work, I will focus

on his most recent writings, accepting this articulation of his account as definitive.52

A. The Rule of Law as a Bulwark Against Arbitrary Power Throughout Allan’s work, he frequently remarks on what he takes to be a normatively

puzzling feature of law: that it allows the state to exercise coercive force over its subjects.53

We can articulate Allan’s puzzle in the following way. Normally we do not think it is

acceptable for some people to use force to compel others to behave in a certain way – typically

49 Allan’s monographs are TRS Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford: Oxford University Press, 1994) [Allan, Law, Liberty and Justice]; Allan, Constitutional Justice, supra note 1; Allan, Sovereignty of Law, supra note 41. Some of Allan’s most important articles (in the context of his view of the rule of law) include: TRS Allan, ‘The Rule of Law’ in Dyzenhaus & Thorburn, Philosophical Foundations, supra note 11, 201 [Allan, ‘Rule of Law’]; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11; TRS Allan, ‘The Rule of Law as the Foundation of Judicial Review’ in Forsyth, Judicial Review and the Constitution, supra note 9, 413 [Allan, ‘Foundation of Judicial Review’]; TRS Allan, ‘Text, Context, and Constitution,’ supra note 41; TRS Allan, ‘Common Law Reason and the Limits of Judicial Deference’ in David Dyzenhaus, ed, The Unity of Public Law (Oxford: Hart Publishing, 2004) 289 [Dyzenhaus, Unity of Public Law]; TRS Allan, ‘In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law’ (2009) 22:1 Can JL & Jur 187 [Allan, ‘In Defence of the Common Law Constitution’]. 50 Although the core claims that he makes remain constant, as my citations below from various periods of his writing will make clear. 51 See e.g. Allan, Sovereignty of Law, supra note 41, and compare with Allan, Constitutional Justice, supra note 1. This choice to co-opt republicanism for his position may have been driven by its use by opponents of common law constitutionalism. See e.g. Richard Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (Cambridge, UK: Cambridge University Press, 2007); Adam Tomkins, Our Republican Constitution (Oxford: Hart Publishing, 2005); Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge, UK: Cambridge University Press, 2010) [Goldsworthy, Parliamentary Sovereignty]. 52 In particular, I focus on Allan, Sovereignty of Law, supra note 41, and several recent articles including Allan, ‘Rule of Law,’ supra note 49, and Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11. However, I will also refer as I note above to his early writings. 53 Allan repeatedly mentions the need to justify the law’s use of coercive force. See e.g. Allan, Sovereignty of Law, supra note 41 at ch 3; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11. This does not mean, however, that this is a distinctive feature of law, as in a command theory (he does not adopt the view that Fuller rejects: see Fuller, Morality of Law, supra note 32 at 108) – rather this is what is normatively puzzling.

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we understand such uses of force to be merely exercises of arbitrary power or violence.54 But

the law is different; we think that it is sometimes appropriate and indeed legitimate for public

legal authorities to wield coercive power. This feature of legal authority is particularly puzzling

if we assume that normally people have a right to be free from arbitrary uses of force, on the

basis that such interference is inconsistent with their freedom, autonomy, and dignity.55

The core question for a rule of law theorist, then, is the ancient, Aristotelian one: what

distinguishes the rule of law from rule by men?56 That is, what are the features of the rule of

law that are necessary to ensure that any use of force against the law’s subjects is legitimate

and authoritative, and is not merely arbitrary power inflicted by some people against others?57

On this view, the rule of law must provide a ‘moral justification for state coercion.’58 And in

particular, it must ‘reconcil[e] public authority with individual autonomy and human

dignity.’59

When the puzzle of legal authority is posed in this way, an essential feature of the rule

of law becomes clear – at a minimum, the law must provide a bulwark against arbitrary

exercises of power.60 It must ‘protect[] each citizen from the arbitrary will of others’61 and

‘shield against domination by powerful private interests or public officials.’62 We can

understand the rule of law, then, as a means by which individuals can be protected from the

54 Allan, Sovereignty of Law, supra note 41 at 254, distinguishing law from ‘arbitrary power or political violence.’ 55 Allan, ‘Rule of Law,’ supra note 49. 56 Allan, Law, Liberty and Justice, supra note 49 at 22 (citing to Aristotle); TRS Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’ (1985) 44 Cambridge LJ 111 at 112-113; Allan, Sovereignty of Law, supra note 41 at 98. 57 Allan, Constitutional Justice, supra note 1; Allan, Sovereignty of Law, supra note 41. 58 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 68. 59 Allan, ‘Rule of Law,’ supra note 49 (abstract to digital version on Oxford Online). 60 Allan, Constitutional Justice, supra note 1; Allan, Sovereignty of Law, supra note 41; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11. 61 Allan, Law, Liberty and Justice, supra note 49 at 22. 62 Allan, ‘Rule of Law,’ supra note 49 at 203.

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threat of arbitrary coercive force, whatever its source: it must ensure that the exercise of both

state and private power is not simply violence. It is thus the task of the rule of law theorist to

distinguish between arbitrary and non-arbitrary types of coercive interference in the lives of

the law’s subjects.

B. The Formal Requirements of the Rule of Law One crucial way in which the exercise of coercive force can be made less arbitrary is

through law’s formal features, as has been argued by scholars such as Fuller and Raz.63 These

formal features require legal power to be exercised through rules that are general, publicly

promulgated, authorized in advance of their application, and clear, among other criteria.64 If

coercive force must comply with these criteria, this will reduce the potential for arbitrariness

when legal power is exercised, in the sense that it prohibits ‘action that lacks any clear basis

in powers or duties previously conferred or declared.’65

In particular, a formal account of the rule of law prevents individuals from being

subject to arbitrary power along two fundamental dimensions. First, when power is exercised

only in accordance with rules that are general, public, stable, etc., individuals gain a certain

kind of liberty.66 The law’s subjects are free to act as they wish, subject to legal constraints on

their behaviour that are known in advance.67 Individuals operate in a domain of independence

63 Ibid. Allan considers a formal account to be the target of his critique in certain ways because this is what political constitutionalists advocate for. See Allan, Sovereignty of Law, supra note 41 at 2. This is also a Diceyan idea – legality understood as power exercised in accordance with its advanced authorization. See AV Dicey, Introduction to the Study of the Law of the Constitution, reprint of 8th ed from 1915 (Indianapolis: Liberty Fund, 1982) at 110 [Dicey, Study of the Law of the Constitution]. For a discussion of the distinction between formal and substantive accounts of the rule of law, see Paul P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) 21 Public Law 467. However, note that not all common law constitutionalists accept this distinction, such as David Dyzenhaus, as we shall see (infra Part IV.A). 64 The full list of Fuller’s formal criteria are as follows: law must be general, publicly promulgated, prospective, clear, non-contradictory, relatively constant, capable of being obeyed, and congruent with official action. Fuller, Morality of Law, supra note 32. 65 Allan, ‘Rule of Law,’ supra note 49 at 205. 66 Ibid; Allan, Sovereignty of Law, supra note 41. 67 Allan, Sovereignty of Law, supra note 41, ch 3.

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that is marked out by law, since any exercise of coercive force against them must be previously

authorized, which gives people the freedom to plan their lives to some extent.68 They retain a

certain fundamental autonomy, a sphere of autonomous action. Thus liberty is enhanced when

power can only be exercised in accordance with rules.

Law’s formal features also reduce arbitrariness by ensuring a certain sort of equality

among the law’s subjects.69 If law is required to be general and known in advance, and to apply

to both officials and citizens, this produces a certain sort of formal equality before the law.70

This too reduces the arbitrariness of exercises of power by ensuring that people are, to a certain

limited extent, treated equally, since any use of coercive force must be consistently applied.

And that means that intrusions on liberty through the use of coercive force are therefore, to

some extent, equal.

By analyzing the virtues of a formal account of the rule of law in this way, Allan is

able to uncover two essential dimensions of how to ensure non-arbitrariness in law: a liberty

dimension and an equality dimension. These two dimensions, revealed by the virtues of a

formal account, help Allan to articulate his account of non-arbitrariness in more detail.

C. The Rule of Law as the Conditions that Secure Freedom as Independence Identifying the liberty and equality dimensions of how law’s formal features promote

non-arbitrariness points Allan towards a more refined conception of the rule of law – one that

can more fully address the question of how the use of coercive force by the state can be

consistent with the freedom and autonomy of persons. Drawing from the republican tradition

in political theory, Allan argues that what non-arbitrariness truly requires is freedom (or

68 Ibid; Allan, ‘Rule of Law,’ supra note 49. 69 Ibid. Dicey also makes this point. Dicey, Study of the Law of the Constitution, supra note 63 at 120. 70 For an important interrogation of the veracity of this claim, see Leslie Green, ‘The Germ of Justice’ (2010) University of Oxford Legal Research Paper Series No 60/2010.

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liberty) as independence.71 By this, Allan means that the law must ensure that individuals

maintain a sphere of freedom in which their actions are independent from the choices of

others72 – that is, a sphere in which no one is authorized to use coercive authority to tell them

what to do. This allows people to be free from the domination of others, which includes both

actual interference with one’s choices and the threat of arbitrary interference.73 In addition,

this sphere must be granted equally to all of the law’s subjects, securing ‘as far as possible an

equal freedom for all.’74

This republican conception of liberty is not to be confused with negative liberty – the

right to be left alone, or to be free from the interference of others.75 Negative liberty is in an

important sense under-inclusive, which we can see by considering the example of slavery.76

By definition, slavery means that the master has a right to decide for the slave what the slave

is to do. Ultimately, it is not up to the slave to decide what to do with her body – that power

has been granted to her master. A slave with a benevolent master, however, may be free in the

71 Allan, ‘Rule of Law,’ supra note 49; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11; Allan, Sovereignty of Law, supra note 41 at ch 3. There is an enormous literature on the concept of freedom as independence, most notably from Quentin Skinner; Phillip Pettit; Arthur Ripstein; NE Simmons; Laura Valentini; and Anna Stilz. But Allan generates his own theory, which combines elements from some of these other thinkers. I have tried to faithfully reproduce that account here, while also reconstructing it as coherently as possible. 72 Allan, ‘Rule of Law,’ supra note 49; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11; Allan, Sovereignty of Law, supra note 41 at ch 3. 73 Allan, Sovereignty of Law, supra note 41 at 96; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 72. 74, 85; Allan, ‘Rule of Law,’ supra note 49 at 205. Allan takes this idea of freedom as non-domination from Philip Pettit. As Pettit puts it, Republican philosophy focuses on a particular evil – the ‘evil of subjection to another’s will – particularly in important areas of personal choice.’ Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge, UK: Cambridge University Press, 2012) at 1 [Pettit, On the People’s Terms]. 74 Allan, ‘Rule of Law,’ supra note 49 at 204. 75 See Pettit’s discussion of the idea that negative liberty is a ‘rival’ way of thinking about freedom. Pettit, On the People’s Terms, supra note 73 at 8. For a helpful discussion of how republican theory builds on a negative liberty (or Hobbesian) picture, Louis-Philippe Hodgson, ‘Kant on the Right to Freedom: A Defense’ (2010) 120 Ethics 791. However, Dyzenhaus has challenged the standard contrast between a republican and a Hobbesian account: David Dyzenhaus, ‘Freedom under an Order of Public Law: From Hobbes Through Hayek to Republicanism’ in Andras Sajo & Renata Uitz, eds, The Tragedy of Liberty (The Hague: Eleven International Publishers, 2015) [Dyzenhaus, ‘Freedom Under an Order of Public Law’]. 76 Allan, ‘Rule of Law,’ supra note 49 at 205.

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negative liberty sense: If the master chooses not to exercise his power to interfere with the

slave, then her negative liberty is not violated because she is not interfered with. But in a more

fundamental sense, we would never consider the slave to be free, because she is not granted as

a matter of right the ability to make choices about how her own life should go.77 Ultimately,

she is not her own master (sui juris).78 This violates the idea that each person should be

independent as a matter of right from the choice of others, and thus slavery is a paradigmatic

example of the type of arbitrary power that is not compatible with the rule of law.

The negative liberty conception is also over-inclusive when compared to freedom as

independence. On a negative liberty picture, it is difficult to justify any interference into the

lives of the law’s subjects, particularly when we consider taxation required to redistribute in

order to provide positive rights to health care, education, a basic income, etc. By contrast,

freedom as independence contains within it a justification for strong redistributive measures

that seek to free people from the domination of others that is generated by economic conditions

and other forms of dependence.79

Finally, freedom as independence on Allan’s view also does not mean letting people

do whatever they wish, regardless of its impact on others.80 Rather, Allan argues that freedom

requires that each person have the right to use their power to pursue their chosen ends,

compatible with the right of each other person to do the same. On this view, I should have a

right to use my body and my things as I see fit, so long as it is consistent with each other

77 Pettit, On the People’s Terms, supra note 73 at 2: ‘Even when those others do not exercise their power in actual interference, the very dependency involved is something from which we naturally recoil.’ See also TRS Allan, ‘Book Review, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, by Kristen Rundle’ (2013) 72:3 Cambridge LJ 753 at 755. 78 Ibid at 7; Allan, Sovereignty of Law, supra note 41 at 129. 79 Allan, Sovereignty of Law, supra note 41 at 129. 80 Allan, ‘Rule of Law,’ supra note 49 at 205-206: ‘A citizen – by contrast with a slave – may have few choices available in practice, but he is free to “shape his course of action in accordance with his present intentions”, not being subject to another person’s will.’

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person’s right to do the same. This is a necessary corollary of the idea of independence – each

person has a right to make their own choices about how to live their life, but that must also

include an obligation not to interfere with the ability of others to exercise the same right. The

law must therefore ensure that one person cannot interfere with another without their consent.

It is this way that Allan combines the liberty and equality aspects of formal theories of

the rule of law, to argue for his conception of freedom as independence. The rule of law

requires a state’s positive law to ensure that each person is free, in the sense that she has the

right to use her body and her things as she sees fit. This requires protecting each person from

interference or the threat of interference. But this guarantee of independence must be granted

to everyone. And so each person’s liberty must be limited by every other person’s equal right

to be free from interference.

When the rule of law is understood in this way, we can see that law is not merely

something from which we need protection, through the ‘bulwark’ of the rule of law. Rather, in

securing the freedom of persons, the law is itself emancipatory. When it conforms with the

requirements of the rule of law,

[l]aw provides the conditions in which each person’s freedom as independence can be secured: its primary task is to define individual domains of liberty, protected from coercive interference both by governmental authorities, on the one hand, and other individuals or organizations, on the other. The rule of law preserves the sovereignty of individual choice and action by allowing each person to pursue his own purposes, free from domination either by state officials or overbearing fellow citizens.81

The rule of law, properly understood, ensures that the law creates freedom for all persons. It is

this emancipatory possibility, Allan argues, that can render law legitimate: ‘Observance of the

rule of law confers legitimacy on systems of government by preserving the conditions that

81 Ibid.

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honour each person’s dignity as an independent agent, responsible for the shape and character

of her own life – answerable to her own convictions about what gives life its point and value.’82

Since it is through the rule of law that individual freedom and human dignity is possible,83

legal authority that protects autonomy can be understood as legitimate. Allan borrows from

Dworkin to argue that law’s legitimacy – the extent to which it is a source of morally binding

obligations – is conditioned on the way in which it treats individuals. The law must treat people

as ‘independent moral agents’ (or in Dworkinian terms, with ‘equal respect and concern’) in

order to generate an obligation to obey the law.84

D. The Substantive Requirements of the Rule of Law While his freedom-as-independence account of what it means for the law to operate

non-arbitrarily is initially drawn from the virtues of a formal account of the rule of law, Allan

argues that a purely formal account does not go far enough to ensure that the legal subject’s

freedom as independence is actually secured. Formal accounts of the rule of law, as a general

matter,85 do not impose any requirements on the particular content or substance of the law. But

if the equal freedom of the law’s subjects must be secured in order to achieve the rule of law,

this will require some constraints on the law’s content.86 While compliance with the rule of

law is compatible with a great degree of variation in the substantive content of the law,87 some

types of laws can violate freedom as independence in their content. So at least to some extent

82 Ibid at 204. 83 There is therefore, as Allan concludes, ‘an important connection between rule through law and respect for human dignity.’ Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 72. ‘If there is a moral obligation to obey the law, it arises because universal adherence to the civil and criminal law provides the only conditions under which liberty, in the sense of independence, can be assured.’ Ibid at 71. 84 Allan, Sovereignty of Law, supra note 41 at 330; Dworkin, Taking Rights Seriously, supra note 12. 85 Dyzenhaus rejects this substance/form distinction, as we shall see: infra Part IV.A. 86 However, we should not understand Allan to be saying that there is some strong separation between form and content; rather he says that the two are highly interdependent and connected. See generally Allan, Sovereignty of Law, supra note 41, ch 3. 87 Allan, Sovereignty of Law, supra note 41 at 123.

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the law must adopt and protect a certain conception of justice in order to comply with the rule

of law.88

For example, take the liberty dimension of freedom as independence. Raz explicitly

states that his formal conception of the rule of law is compatible with slavery. But on the view

that the rule of law requires protecting the legal subject’s freedom as independence, this cannot

be correct. As noted above, slavery is the core example employed by republican theorists of a

practice that would violate such a conception of the rule of law. Situations in which one person

is subject to the choice of another about how they are to live their lives must be prohibited by

the law, if it is to comply with the rule of law understood to mean freedom as independence,

and if the law is to accord each of its subjects the proper respect for the individual’s moral

agency and human dignity. The law’s content must therefore protect certain basic rights and

liberties from violation – from both public and private parties – so that one person is not subject

to the choice of another about how to live their life. The law must enforce ‘a scheme of rights

and duties that provides for each individual a domain of liberty, secure from the threat of

domination either by public officials or powerful private interests.’89

Drawing on Dicey, Allan argues that these basic rights and liberties include those

protected by the common law in practice.90 For example, these include unwritten constitutional

rights that have accrued in the common law tradition, such as rights to freedom of expression,

conscience, and association.91 They also include procedural protections such as the

requirements of natural justice (or procedural fairness) that have been developed by the

88 Ibid at ch 3. 89 Allan, ‘Rule of Law,’ supra note 49 at 218. 90 Ibid at 208. 91 Ibid at 204.

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courts.92 And finally the individual’s fundamental liberty is secured by the operation of the

principles of ordinary private law and criminal law, which work in practice to protect

individual rights and freedoms.93 Thus the content of the common law has protected and should

protect the basic rights and freedoms of persons, as a matter of the rule of law.

The equality dimension of the freedom as independence account also has substantive

implications for the law’s content.94 While a purely formal account does secure some degree

of equal treatment through the generality requirement, it does not prohibit grossly arbitrary

treatment based on immutable characteristics such as race, gender, or sexual orientation, as

Raz readily acknowledges.95 However, legal distinctions made on the basis of such

characteristics, Allan argues, would constitute a denial of freedom as independence, because

‘members of racial or religious minorities, for example, would not enjoy the same autonomy

as others, their personal spheres of independent action curtailed for reasons that would not be

thought to justify general restrictions on liberty.’96

Thus to avoid arbitrary treatment, the law’s content must protect equality. The law

cannot treat people differently by offering them different degrees of liberty, if such treatment

92 Ibid at 215; Allan, Sovereignty of Law, supra note 41 at 88. 93 Allan, ‘Rule of Law,’ supra note 49 at 217; Allan, Sovereignty of Law, supra note 41 at 94 (citing to Dicey from where this idea is derived). 94 There is, of course, an enormous, important, and sophisticated theoretical literature on the legal ideas of equality and discrimination, by scholars such as Elizabeth Anderson, Ben Eidelson, Deborah Hellman, Tarunabh Khaitan, Kasper Lippert-Rasmussen, Sophia Moreau, and Denise Reaume. But since Allan’s interest is in the distinctive connection between equality and the rule of law in the common law tradition, he largely generates his own account, which I have tried to faithfully reconstruct here without reference to other theorists in this tradition. 95 Allan, Sovereignty of Law, supra note 41 at 123, citing to Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 211. Note that Fuller might not have agreed. He thinks that such distinctions are prohibited on his formal account: Fuller, Morality of Law, supra note 32 at 160 (discussing distinctions on the basis of race). However, Fuller doesn’t think that this applies to distinctions on the basis of sexual orientation: Fuller, Morality of Law, supra note 32 at 133. Fuller clearly thinks that his formal account has substantive implications: ‘recognition that the internal morality of law may support and give efficacy to a wide variety of substantive aims should not mislead us into believing that any substantive aim may be adopted without compromise of legality.’ For example, laws that attempt to make distinctions based on race are a ‘gross departure from the demands of the internal morality of law.’ Fuller, Morality of Law, supra note 32 at 160. 96 Allan, Sovereignty of Law, supra note 41 at 123.

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is based on distinctions that cannot be justified through reference to any conceivable

understanding of the public good, because such distinctions would be simply arbitrary.97 The

content of the law must therefore make sure that this equal treatment is assured.

Allan therefore concludes that understanding the rule of law to prohibit arbitrary power

through a guarantee of freedom as independence requires that the law conform to certain

substantive requirements, in addition to standard formal requirements. Along the liberty

dimension, the content of the law must ensure that individuals are secured against interference

from both public and private actors through the protection of constitutional rights and the

operation of the ordinary civil and criminal law. Along the equality dimension, the content of

the law must not make arbitrary distinctions among persons when limiting their freedom.

E. Overview of Allan’s Theory

In my analysis thus far, I have established that Allan’s theory of the rule of law requires

protections for liberty and equality that secure freedom as independence, and that these two

dimensions have both formal and content-based requirements. I can therefore map Allan’s

theory of the rule of law as follows.98

97 Ibid at 99. 98 While Allan’s account can be set out in this 2x2 matrix, this is not to suggest that he regards these categories as watertight or rigid. He does not lay out his account in precisely this way – he does not distinguish between the liberty and equality dimensions in the thoroughgoing way that I have here – and he is careful to emphasize the interdependence between the form/content dimensions and between the liberty/equality dimensions. He writes, ‘The ideals of liberty and equality are accordingly closely aligned, and each is dependent for its realization on the rule of law or respect for legality.’ Ibid at 99. See also ibid at 112: ‘Once we accept that respect for the rule of law demands more than bare legality, in the sense of some formal source of authorization (such as derivation from a rule of recognition), we discover that there is no clear division between form and substance.’ Allan gives the example of a bill of attainder, which seems to violate both the liberty and the equality dimensions. Ibid at 93-94. (This analysis calls to mind the ‘double helix’ of equal protection and due process in the American constitution: Laurence H Tribe, ‘Lawrence v Texas: The “Fundamental Right” that Dare Not Speak Its Name’ (2004) 117 Harv L Rev 1893 at 1898; see also Elizabeth Anderson, ‘Freedom and Equality’ in David Schmidtz & Carmen Pavel, eds, The Oxford Handbook of Freedom (Oxford: Oxford University Press, 2015). Allan also thinks that the formal features may need to be flexible in order to make way for substantive aims of the rule of law, which responds to an important objection to a Fullerian account: see Benjamin Zipursky, ‘The Inner Morality of Private Law’ (2013) Am J Juris 27.

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Law’s Form

Law’s Content

Freedom as

Independence: The Liberty Dimension

Law’s form creates a predictable sphere of liberty for the individual

Liberty secured through constitutional and procedural rights, and the principles of private and criminal law

Freedom as

Independence: The Equality Dimension

Formally equal treatment under the law

Distinctions between persons must be made on a fair and non-arbitrary basis

This summary represents Allan’s conception of the rule of law operating as an ideal,

which is how he typically frames his account.99 Adopting Dworkin’s interpretivist stance,

Allan argues that legality can provide a lodestar towards which all interpretations of the law’s

content can be aimed. We should orient the content of law (in all of its instantiations) towards

securing the equal freedom of persons, because the rule of law ‘demands … that the law should

embody a coherent and consistent scheme of justice.’100 The rule of law is ‘an ideal that

informs and characterizes our concept of law,’101 and thus the content of any particular law

should be construed and understood in conjunction with this ideal. Since the ideal of equal

freedom requires both that the law protect basic rights and liberties (on the liberty side) and

that the law abhor arbitrary distinctions (on the equality side), the content of the law should be

interpreted in its entirety to accommodate this conception of justice. The rule of law thus

provides a moral ideal through which the law can be developed.

99 ‘I offer my account of the rule of law as an attractive ideal, already embedded in our institutions and fundamental political commitments.’ Allan, ‘Foundation of Judicial Review,’ supra note 49 at 415. 100 Allan, ‘Rule of Law,’ supra note 49 at 203. 101 Allan, Sovereignty of Law, supra note 41 at 89.

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But while Allan argues that this is an ideal towards which the law must strive, he

simultaneously argues that these principles are already inherent in the law.102 He contends that

these principles of the rule of law can be observed in the operation of ordinary civil and

criminal law – that they inhabit and animate British legal practice. In essence, the law already

has the moral (or constitutional) resources within it to further the rule of law in practice.

Finally, Allan argues that the picture of legality he provides requires a mechanism by

which positive law can be brought into conformity with the ideal of equal freedom. If legality

is a condition of the legitimacy of a particular law, then there must be a means by which the

law can be monitored to ensure that it complies with the requirements of legality.103 This is

done through the separation of powers, which gives independent judges the obligation to

interpret the laws that they are tasked with applying in line with these essential principles of

legality. In extreme cases where the law cannot be brought into conformity with the rule of

law through Dworkinian interpretative practice, judges should have the power to refuse to

apply the law – including the power to declare a law invalid. In his dispute with the political

constitutionalists such as Bellamy, Waldron, and Goldsworthy, Allan argues that this

conception of a judge’s role is not a violation of the idea of legislative supremacy but instead

is implicit in it: the concept of law requires that there be a body tasked with ensuring that the

law that applies to particular individuals conforms with the requirements of legality.104 And on

his conception of the rule of law, that entails conformity with the requirements of freedom as

independence.

102 Goldsworthy argues that this is a real tension in this account. Goldsworthy, Parliamentary Sovereignty, supra note 51 at 69. 103 ‘Legal rights and duties are genuine – provoking legitimate state force in their defence – only when they are features of a scheme of governance that, correctly interpreted, accords each individual the freedom that his human dignity demands.’ Allan, ‘Rule of Law,’ supra note 49 at 220. 104 ‘If we are unwilling to take shelter in fictions and fairy tales we must come clean: there are limits to legislative supremacy that the courts must enforce in defence of legality.’ Allan, Sovereignty of Law, supra note 41 at 220.

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Part III: The Aspects of Allan’s Account Applicable to Public Policy

Having provided an overview of Allan’s theory of the rule of law, we can now identify

which specific principles derived from his rule of law account could be employed in the context

of public policy. As discussed above, the principles that could be relevant in the public policy

context are those that apply to substantive aspects of private law in the transnational context,

where a law must be refused application on the basis of its normatively problematic content. I

begin my analysis by isolating which rule of law norms (in Allan’s view) would require a

particular law to be refused application. I turn to the issue of which norms apply in the private

and transnational contexts in the sub-parts below.

A. Which Rule of Law Principles Result in Non-Application?

As discussed above, Allan frequently frames his account of the rule of law as an ideal

that informs the interpretation of all aspects of positive law. And because it is an ideal, the rule

of law can be instantiated in different ways in different legal systems. He writes, ‘The ideal of

legality is compatible with a great diversity of opinion about the social, economic, and cultural

conditions that best uphold human dignity.’ The rule of law, he argues, ‘does not prescribe the

detailed content of the laws … there are many different arrangements compatible with liberty

and equality.’105

But Allan also insists that courts must have the power to strike down laws that violate

fundamental principles of the rule of law, to properly guard against arbitrary power and secure

freedom as independence.106 For the purposes of this project, it is these core principles that we

are interested in identifying, since they will be the ones most likely to be used in the public

policy context, where judges refuse to apply foreign law. Like other common law

105 Allan, Sovereignty of Law, supra note 41 at 123. 106 Ibid at 117; Allan, ‘In Defence of the Common Law Constitution,’ supra note 49.

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constitutionalists, Allan does not provide an explicit or concise list of which aspects of his

theory are mandatory. But his theory of the rule of law as freedom as independence clearly

requires the law to conform with certain core principles.

Let us begin by discussing the mandatory aspects of the liberty dimension of his

account. Throughout his writings, Allan states that if a law constitutes a denial of fundamental

human rights, then it cannot be applied by the courts. A judge must refuse to apply a law that

entails a ‘gross violation of human rights’107 or ‘the abrogation of fundamental rights.’108

Allan’s account of the rule of law as freedom as independence helps us to understand

which human rights must be secured for the rule of law to be upheld. Allan argues that the

concept of law requires that individuals be treated as responsible moral agents and with respect

for their human dignity; this requirement is ‘a condition of the legitimacy of the state’s coercive

authority.’109 This requires securing a sphere of autonomy and independence to ensure that

each individual is not subject to the choices of others as a matter of right – so that each person

is his own master. And there are certain human rights, Allan argues, that are essential to that

project. These include fundamental rights of freedom of expression, freedom of conscience,

and freedom of association. They also include the right to bodily integrity, on the basis that no

one else should decide what is done to your body, and thus slavery and torture must be

prohibited.

It is thus these basic, core rights protections that Allan sees as fundamental to the liberty

dimension of his theory of the rule of law. While Allan does not provide us with a highly

specified or definite list of which rights must be upheld by the rule of law, it is clear that those

107 Allan, Sovereignty of Law, supra note 41 at 166. 108 Ibid at 185. 109 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 68.

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rights connected to the autonomy and independence of persons – particularly those widely

recognized as human rights – are central to his account.110

On the equality dimension, Allan’s overall argument is that any distinction in the way

that people are treated must be non-arbitrary, in order to avoid violating the equal freedom of

persons. And Allan clearly thinks that there are some types of distinctions that are prima facie

arbitrary and thus must violate of the rule of law.111 He states that discrimination on the basis

of gender, race, or sexual orientation is almost certainly arbitrary, because it cannot possible

be justified by any conception of the public good – and so such discrimination fails to comply

with his theory of the rule of law. Thus on the equality dimension, distinctions made on the

basis of immutable (or constructively immutable) characteristics are the type of arbitrary

unequal treatment that constitutes a violation of the rule of law.112

We can now identify a new level at which Allan’s theory operates – those mandatory

rule of law obligations that will prohibit the law from being applied at all:

110 This analysis does not provide us with a complete list of which rights would qualify and which would not. But that is not what we require for this project, because ultimately we need to consider which rights would be available in the private law context. Thus concluding that the essential rights on Allan’s picture are those that go to the fundamental autonomy of the individual – which likely includes basic human rights – is sufficient. 111 See e.g. Allan’s discussion of discrimination against gay men by the British armed forces. Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 85 n 58. 112 This requirement is also connected to basic human rights obligations, where freedom from discrimination – at least on the basis of race – is an emerging jus cogens norm. See infra Chapter 5.

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Law’s Form

Law’s Content (Ideal Level)

Law’s Content

(Mandatory Level)

Freedom as

Independence: The Liberty Dimension

Law’s form creates a predictable sphere of liberty

Liberty secured through constitutional and procedural rights, and the principles of private and criminal law

Basic rights that are central to the autonomy and independence of persons

Freedom as

Independence: The Equality Dimension

Formally equal treatment under the law

Distinctions between persons must be made on a fair and non-arbitrary basis

Prohibition on distinctions among individuals on the basis of immutable characteristics (such as race, gender, or sexual orientation)

B. Which Invalidity Principles Apply in the Private Law Context?

The next question is which of these fundamental requirements of the rule of law are

applicable in the context of private law. Unlike some rule of law theorists who focus

exclusively on public law, Allan devotes considerable attention to the way in which the rule

of law is connected to private law. He characterizes his account as ‘a radically different

perspective on the rule of law that moves private law to centre-stage,’113 and emphasizes the

importance of the ordinary civil law to a system governed by principles of legality. Drawing

from Hayek, Allan argues that ‘adherence to the rule of law secures for everyone the benefits

of a system of private law based on the values of freedom and equality’114 – so compliance

with the rule of law demands certain private law protections. And likewise, a properly

constructed system of private law is of central importance in a system governed by the rule of

113 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 67. 114 Ibid at 78.

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law: ‘Insofar as private law embodies a just scheme of rights, powers, and duties to regulate

the private sphere – the interaction of individuals, regarded as equal and autonomous, entitled

to respect for their separate aspirations and projects – it constitutes the major substance of the

rule of law.’115 For Allan, then, compliance with the rule of law will necessitate certain private

law protections, and the construction of a system of private law will help fulfil the requirements

of the rule of law. Private law and the rule of law are therefore mutually constituting.

As with his general account of the rule of law, Allan argues that the rule of law in the

context of private law is best understood as the conditions that secure freedom as

independence.116 To explain what this entails, Allan continues to draw on the liberty and

equality dimensions of his account.117

On the liberty dimension of his account of the rule of law, Allan focuses on the way in

which private law can secure the freedom as independence of the law’s subjects. The

possibility of domination through arbitrary exercises of power is equally of concern in the

horizontal, interpersonal context as it is in the vertical, state-to-subject context.118 Slavery, for

example, is a private law relationship that exemplifies the type of domination and arbitrary

power that freedom as independence is meant to prohibit.119 By constructing private law in a

way that prohibits violations of the autonomy of persons, private law can therefore secure

115 He continues: ‘The ordinary civil law and criminal law together define the protected domains of liberty within which individuals can pursue their own ends in cooperation with others, each enjoying the same freedom.’ Ibid at 68. 116 See generally ibid. 117 ‘In preserving the integrity of private law, the rule of law is both a basic guarantee of liberty and an expression of fundamental equality.’ Ibid at 91. 118 See generally ibid. 119 A slave owner claims a proprietary relationship in his slave, and thus to the extent that slavery is part of a state’s positive law it will be instantiated in private law. For a discussion of slavery as an example of a human rights violation in the context of private law, see Ariel Zylberman, ‘Kant’s Juridical Idea of Human Rights’ in Andreas Follesdal & Reidar Maliks, Kantian Theory and Human Rights (New York: Routledge, 2014) 27; Daniel Freidmann & Daphne Barak-Erez, ‘Introduction’ in Freidmann & Barak-Erez, Human Rights in Private Law, supra note 36, 1 at 2 (discussing Somerset’s case). We will see the centrality of this example to both public policy and to the rule of law in Chapter 3.

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freedom as independence. Or as Allan puts it, ‘[b]y defining the boundaries of each person’s

freedom of choice and action, private law … secures an inviolable domain of liberty. A basic

autonomy … is preserved as a condition of the legitimacy of the state’s coercive authority.’120

On the equality dimension, Allan argues that private rights must be granted to the law’s

subjects in a non-discriminatory manner. This is necessary to avoid arbitrary differences in

treatment among persons and thus to avoid subjecting people to the type of arbitrary power

that freedom as independence seeks to protect against. Just as discrimination is impermissible

in the public law context, the government also cannot discriminate when establishing what

private rights people have.121

As in his general discussions of the rule of law, Allan frames its operation in the context

of private law as a moral ideal to which legal interpretation should be oriented.122 And given

that the rule of law is an ideal, the precise content of private law can vary between legal

systems.123

But Allan is equally clear that the existence of a system of private law with certain

mandatory substantive features is an essential feature of the rule of law. Allan tells us that

‘enforcement of the rule of law consists, in private law, in the defence of the rights and duties

that compose the established scheme of civil liability.’124 Indeed, these rights and duties that

compose an ‘established scheme’ of private law are a ‘basic requirement of the rule of law.’125

120 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 68. 121 Equal freedom entails non-discrimination: ‘Curtailments of freedom must be justified by reference to the general good in the sense of the preservation of equal independence; from that perspective racial, sexual, or religious discrimination is simply a perversion of state power, analogous to the arbitrary whim of the official who abuses the power conferred by a general rule.’ Ibid at 80. 122 See e.g. ibid at 71. 123 ‘While the specific content of civil and criminal law will vary from jurisdiction to jurisdiction, the maintenance of a system of regulation that serves an existing order of interaction is a basic requirement of the rule of law.’ Ibid at 68. 124 Allan, Sovereignty of Law, supra note 41 at 232. 125 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 68.

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As discussed above, the type of rights that must be upheld as a matter of the rule of law in

general are those that are aimed fundamentally at the independence and autonomy of persons

(on the liberty dimension)126 and at prohibiting discrimination on the basis of immutable

characteristics (on the equality dimension). Allan reiterates this claim in the context of his

writing on private law: private law must establish a ‘basic autonomy’127 and a ‘basic

equality’128 that are ‘condition[s] of the legitimacy of the state’s coercive authority.’129

Allan does not clearly enumerate which fundamental private law rights and duties are

a ‘basic requirement of the rule of law’– he seems to think that the fundamental principles are

too obvious to require extensive discussion.130 However, a careful reading of Allan’s account

helps us to illuminate the type of basic rights and duties that a system of private law must

respect in order to comply with the rule of law. I begin by discussing the liberty dimension of

his account, and then move on to discuss the equality dimension. On the liberty dimension of

his account, we can identify at least three principles that must inhere in a system of private law

in order to comply with the rule of law. (There may be more such principles implicit in Allan’s

account, but these three are the most clearly elaborated.)

126 They establish a ‘basic autonomy’ that is ‘a condition of the legitimacy of the state’s coercive authority.’ He also repeats this explicitly in the private law context. See ibid at 68. 127 Ibid. 128 Ibid at 86. 129 Ibid at 68. 130 We also cannot simply derive the basic rights of private law from those he discusses in the context of public law, because (as Allan acknowledges) the horizontal effect of public rights cannot be assumed. There is currently substantial debate over whether human or constitutional rights that inhere in the context of public law will also apply in the context of private law. See e.g. Thomas, Public Rights, Private Relations, supra note 36; Barak, ‘Human Rights and Private Law,’ supra note 27. That is, just because Allan names a particular constitutional right to be one he considers to be most essential in the context of constitutional or administrative law, does not mean that he would also consider it to necessarily also apply in the context of private law. Indeed, this is a difficulty that he himself acknowledges when discussing the horizontal effect of human rights law, stating that some rights are ‘public’ in nature. Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 81. Some rights ‘depend on development of a more specific jurisprudence for their definition and enforcement’ in the context of their horizontal effect. Ibid. Here he places rights to speech, association, and privacy. Ibid.

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i. The Liberty Dimension of Freedom as Independence: The Sui Juris Requirement

The first requirement is that private law must ensure that each person is sui juris, or her

own master. Private law relationships that allow one person to be subject to the domination of

another violate the rule of law, because they do not preserve the independence of persons. We

observe this requirement in Allan’s repeated use of republican theorists’ example of slavery to

illustrate the type of relationship that must be prohibited by law in order to protect freedom as

independence. Slavery allows one person to be subject entirely to another’s choice as a matter

of right, a structure that cannot be countenanced when the objective of law is to protect

individuals from arbitrary power. And slavery is a horizontal, private law relationship, in

which one person claims a proprietary interest in another person, thus giving them the power

to tell that person what to do. It is therefore an example of a type of private law relationship

that is impermissible on Allan’s theory of the rule of law. We can thus conclude that private

law relationships that deny an individual the ability to be her own master violate the rule of

law.

Allan also lists other practices that are akin to slavery and that must be prohibited by

private law, because they too subject one person to the will of another and thus violate freedom

as independence. These other practices include torture, murder, and arbitrary detention.131

These examples of domination must be prohibited by a state’s private law, ‘as a condition of

the legitimacy of the state’s coercive authority.’132

131 Alan alludes to this in his discussion of horizontal rights: ‘Insofar as rights against torture, murder, slavery, and arbitrary detention extend to the private sphere, they are already enshrined in the ordinary civil and criminal law.’ Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 81. For a helpful discussion of how murder, like slavery, is an example of the type of domination that freedom as independence prohibits, see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009) at 140. 132 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 81.

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Thus we can clearly identify one aspect of Allan’s theory that is intended to apply in

the context of private law: the sui juris requirement. If a particular horizontal legal relationship

allows one person to dominate another, so that person is entirely subject to the dominator’s

choice, this violates freedom as independence. Practices such as slavery, murder, torture, and

arbitrary detention are examples of practices that must be prohibited by a system of private

law as a matter of right. A legal claim to dominate another person in these ways is simply

incompatible with legality, and thus legal rules that ostensibly grant one person this type of

power over another in private law must be refused application.

ii. The Liberty Dimension of Freedom as Independence: The Consent Requirement

These abject instances of domination are not the only way in which one person can

violate another’s independence. As Allan tells us, the core idea at the heart of freedom as

independence is that each person has a right to use their powers – their bodies and the things

that they happen to own – as they see fit.133 Private law is meant to establish a system of equal

freedom, where people can pursue their own purposes, and act in cooperation with others if

they so choose.134

This picture of equal freedom entails a strong consent requirement in private law. The

right to freedom is simply ‘the right to act independently of the choice of others, consistent

with the entitlement of others to do the same.’135 While independence may give me the right to

use my body and my things as I see fit, it does not give me the right to use your body or your

things without your consent – because that would not be a system of law that protects each

133 Allan typically refers to this idea as the right to pursue one’s own ends. See e.g. Allan, Sovereignty of Law, supra note 41 at 98, 128. 134 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 68, 72, 77. 135 Allan, Sovereignty of Law, supra note 41 at 129.

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persons’ freedom equally. A system of private law must therefore preserve a minimal consent

requirement: private persons cannot interfere with the bodies or things of others without their

consent. This idea is at the heart of innumerable private law doctrines, and it is among the

clearest ways in which freedom as independence is instantiated in private law.

This aspect of Allan’s theory also emerges from his discussion of Hayek. He quotes

Hayek’s description of the nature of the domain of liberty that is established by private law: If

arbitrary coercion is limited through the protection of fundamental rights, the individual is

granted a domain of independence in which he is ‘wholly unrestricted in all actions which

affect[] only his personal domain or that of other consenting responsible persons.’136 We also

see the centrality of a consent requirement to Allan’s theory of the rule of law in the context

of private law by his focus on choice and cooperation in private law. The purpose of private

law, Allan argues, is to establish a domain of freedom for individuals in which it is up to them

to decide how to act. They can choose to act together through cooperative efforts, but they

need not do so. This requires private law, as a condition of protecting freedom as independence,

to ensure that each person has a right to decide how to use her body and her things, and to

ensure that no one else has a right to do so without her consent. We can therefore identify the

second principle of Allan’s liberty dimension of the rule of law in the context of private law:

a consent requirement, requiring interference from other private parties to be limited to

situations in which the parties consent.

136 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 81 (quoting FA Hayek, Law, Legislation and Liberty: The Political Order of a Free People, vol 3 (Routledge & Kegan Paul, 1982) at 111.

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iii. The Liberty Dimension of Freedom as Independence: The Responsibility Requirement

Finally, we can identify a third mandatory rule of law principle that is implicit in

Allan’s account of private law: the idea that liability must track the responsibility of the legal

subject. Allan’s theory of freedom includes the idea of equal freedom: that each person’s

freedom must be consistent with the same freedom being granted to every other person. This

notion, Allan argues, helps us to see how liability rules can be consistent with the liberty of

persons – how the law’s use of coercive force can still be consistent with freedom.137 We can

hold people liable if they interfere with the freedom of others, by using their body or their

things without their consent, on the grounds that such a structure of legal liability is in the

service of protecting the equal freedom of persons. In other words, the law can rightfully hold

private persons liable if they are responsible for violating the freedom of others, because that

liability is a necessary part of a system of equal freedom.

But this principle has an inbuilt limitation. If the law must treat people as independent

moral agents, capable of making decisions about how to live their own lives – as Allan insists

it must – private law can only hold people liable for things that they are actually responsible

for doing to other people. Thus liability for violating the freedom of others must in some sense

track the agency or responsibility of the alleged wrongdoer. This requirement is an

extraordinarily basic requirement of private law: as a general matter, we only hold people liable

when they are actually responsible for violating the rights of others. If they have done nothing

to wrong another individual, then they cannot be held liable.

We see this principle emerge at several points in Allan’s analysis. He frequently

invokes Fuller’s idea that the law must treat people as responsible agents if it is to comply with

137 Allan, ‘Rule of Law,’ supra note 49 at 205-206; Allan, Sovereignty of Law, supra note 41 at 89, 131.

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the rule of law.138 Fuller’s idea of responsible agency entails limiting liability rules to things

for which people could actually be held responsible, and explains why concepts like ‘fault’

and ‘intent’ are so central to law. If the law can hold people responsible for things that they do

not do, Fuller argues, then the law would act upon people as if they are ‘helpless victims of

outside forces,’139 and the law would be incapable of being complied with. This is inconsistent

with the concept of law itself, which governs through general rules that rely on the agency and

autonomy of persons to generate compliance; the law does not merely use managerial direction

or ‘act on’ its subjects. The very idea of law requires a responsibility principle that limits

liability in such a way that people could actually conform their behaviour to the law’s

requirements.

This analysis helps us identify at least three important and extremely basic rule of law

values that apply in the context of private law and that represent important aspects of Allan’s

conception of freedom as independence regarding the basic liberty of persons:

1. The right to be sui juris;

2. The right to be free from interference from other private persons, absent consent to

that interference;

3. The requirement that liability track responsibility.

This analysis is not meant to suggest that these are the only three fundamental private law

values that are part of Allan’s account; there could clearly be others. But these three private

law concepts, which reflect the liberty dimension of Allan’s account, are all clearly

138 Allan, ‘Rule of Law,’ supra note 49 at 206, 208; Allan, Sovereignty of Law, supra note 41 at 110, 128; Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 88. 139 Fuller, Morality of Law, supra note 32 at 167.

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fundamental to freedom as independence, understood as preserving the autonomy and agency

of persons. They are thus a necessary part of any system of private law.

iv. The Equality Dimension of Freedom as Independence

On the equality dimension, Allan is explicit about how the basic right of non-arbitrary

(and thus non-discriminatory) treatment applies in the context of private law. In his view,

pernicious discrimination against particular groups ... would be simply arbitrary, and hence impermissible, from the perspective of a system of universal rules of just conduct. They are arbitrary, and hence unjust, because they have no connection with any legitimate governmental purpose. Distinctions between different groups must be related, at least indirectly, to the requirements of an order of private law, which is intended to serve the varied interests of individuals – persons whose aims and ambitions will intersect with those of others according to mutual interest, fostered by freely chosen relationships. Curtailments of freedom must be justified by reference to the general good in the sense of the preservation of equal independence; from that perspective racial, sexual, or religious discrimination is simply a perversion of state power, analogous to the arbitrary whim of the official who abuses the power conferred by a general rule.140

On Allan’s view, the purpose of private law is to establish a system of equal freedom (or equal

independence, as he puts it here). Discrimination by the state on the basis of an immutable (or

constructively immutable) characteristic in the context of private law is arbitrary, because it

cannot be said to serve this purpose. Discrimination is inconsistent with equal freedom because

it curtails some people’s freedom for reasons that are necessarily arbitrary and thus unjustified.

Thus any distinctions imposed by the state in a system of private law on the basis of sex, race,

religion, and other such characteristics are almost certainly problematic from the perspective

of the rule of law.141 The state therefore cannot ‘enforce discrimination against particular

groups through private law’142 while acting in compliance with the requirements of legality.

v. Summary: Allan’s Mandatory Rule of Law Principles in Private Law 140 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 80. 141 When we understand the rule of law to be charged with preserving and protecting the equal freedom of persons. 142 Ibid at 84 n 55.

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With this analysis of the liberty and the equality dimensions of Allan’s account in the

context of the inviolable principles of substantive private law complete, we can now restate

his account as follows:

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Law’s Form

Law’s

Content (Ideal Level)

Law’s

Content (Mandatory

Level)

Law’s Content (Mandatory in

Context of Private Law)

Freedom as

Independence: The Liberty Dimension

Law’s form creates a predictable sphere of liberty

Liberty secured through constitutional and procedural rights, and the principles of private and criminal law

Basic rights that are central to the autonomy and independence of persons

Basic rights that apply in the context of private law: 1. Sui juris

requirement 2. Consent

requirement 3. Responsibility

requirement

Freedom as

Independence: The Equality Dimension

Formally equal treatment under the law

Distinctions between persons must be made on a fair and non-arbitrary basis

Prohibition on distinctions among individuals on the basis of immutable characteristics (such as race, gender, or sexual orientation)

Private rights must not be granted on a discriminatory basis (such as race, gender, or sexual orientation)

In the public policy context, law’s formal features will less frequently be at issue,

because a rule that does not adhere to law’s formal features typically cannot be considered by

another state’s court. In the most obvious example, a foreign law that is secret cannot be

considered for application by a forum court.143 Thus it is the rule of law’s substantive (as

opposed to formal) requirements that are most likely to be applicable in the public policy

143 The same logic applies to the other traditionally articulated principles of a formal account of law, such as clarity, prospectivity, etc. Of course, if for some reason foreign law that did not comply with the rule of law’s formal features was under consideration by a common law court, my rule of law approach to the exception would allow it to be easily excluded as a matter of public policy. As I discuss in Chapters 5 and 6, infra, the rule of law’s formal features will also be helpful in explaining when public policy has been used in certain cases.

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context, and thus we can bracket the formal criteria Allan points to for the moment. We can

also, of course, bracket his ideal requirements and his general mandatory requirements,

focusing on the mandatory requirements in the context of private law. We can thus state the

rule of law principles which are potentially applicable to the public policy context as follows:

Law’s Content

Freedom as Independence:

The Liberty Dimension

Basic rights that apply in the context of private law:

1. Sui juris requirement 2. Consent requirement 3. Responsibility requirement

Freedom as Independence: The Equality Dimension

Private rights must not be established on a discriminatory basis (such as race, gender, or sexual orientation)

C. Which Principles Apply in the Transnational Context?

The final question regarding Allan’s theory of the rule of law is whether his inviolable

substantive principles that apply in the context of private law would also apply in the

transnational context. Would they be applicable when a court is considering whether to apply

some foreign state’s law to events that may have taken place outside the territory of the forum

state or that may involve non-citizens? This is a live question because Allan often refers to the

legal subjects of his account as ‘citizens,’144 and because his primary focus is on whether

domestic law that is produced by the British parliament can be interpreted or invalidated by

British courts on the basis of the rule of law. That is, his rule of law account appears in some

places to apply only to citizens and only to law passed by a domestic parliament.

144 See supra note 41.

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However, there are important reasons to think that Allan’s theory of the rule of law

should apply whenever a common law court is being asked to apply the law, no matter what

the source of the legal rule under consideration or the nature of the events in question –

including in transnational contexts. Allan’s theory of the source of principles of legality

strongly implies that the requirements of the rule of law should apply even when the forum

court confronts a transnational context.145 Allan does not root his account of the rule of law in

the particulars of the British constitution, context, or tradition. While Allan argues that rule of

law values are embedded in the practice of the common law, that is not their ultimate source.

Instead, the requirements of the rule of law are fundamental principles of legality that derive

from the nature of law itself and its obligation to treat individuals as responsible moral agents

possessing human dignity. Given that this is the source of the rule of law, its principles should

clearly constrain law’s content even when the content of the law is created by a foreign state.

In addition, while Allan sometimes refers to the law’s subjects as ‘citizens,’ he also

explicitly states that both the liberty and equality dimensions of his account apply to citizens

and non-citizens alike. On the liberty dimension, the rights that are due to the law’s subjects

as a matter of the rule of law are basic human rights. They do not rely on the particulars of a

state’s constitution or other legal guarantees. Indeed, they do not even need to be part of the

positive law of a particular state to be able to be applied by a court. Instead, they inhere in the

very nature of the enterprise of subjecting people to law in a way that avoids arbitrary exercises

of power. This rationale transcends the specifics of the British or domestic context. Allan

explicitly states that ‘the state must honour everyone’s human rights, including non-citizens,’

145 It is interesting to compare Allan’s description of the rule of law in his writings about the British constitutional context (Allan, Sovereignty of Law, supra note 41) with his writings about the rule of law in the abstract (Allan, ‘Rule of Law,’ supra note 49). There appears to be no substantive difference between his accounts in these two quite different situations.

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and that ‘we assume that lawfully resident non-citizens are entitled to the same protections as

citizens demand for themselves – especially respect for their human rights, fundamental to

human dignity.’146 Thus while Allan may use the language of citizenship, it appears that this

is of no significance in the context of basic rights guarantees when one examines the

fundamental premises on which his rule of law account is based. The equality dimension of

freedom as independence is also owed to all of the law’s subjects. In his writings, Allan often

states that discrimination between nationals and non-nationals is a key example of a

discriminatory rule of law violation.147 He argues that it is the court’s job to ensure that any

such distinctions between nationals and non-nationals take place on a rational basis. Thus the

equality dimension of the rule of law applies regardless of the nationality of law’s subjects.148

For these reasons, if a court is tasked with applying a particular law, it is its duty to

ensure that the content of the law complies with the fundamental principles of legality. This is

the case regardless of the law’s source and regardless of the nationality of law’s subjects,

because Allan’s theory is not rooted in a particular domestic account but in a normative

rationale that emanates from the law itself.

D. Summary: The Principles Relevant to the Public Policy Context

With this analysis of Allan’s theory of the rule of law complete, we can now identify

which rule of law principles from his account could be raised in the public policy context. On

the liberty dimension of his theory, foreign private law must, at a minimum (1) protect the

146 Allan, Sovereignty of Law, supra note 41 at 91 n 8, 93 n 13. 147 Ibid at 114-115. 148 This rationale is even more likely to extend to the private law context. We can imagine various public law rights such as civil participation rights, positive rights such as health care, and the like being restricted to those with a long-term commitment to a particular polity, and thus perhaps the equality obligations of the rule of law may allow some discrimination in the context of public law rights. But in private law, where (as Allan argues) the fundamental premise is the equality of the parties, it is even more likely that the basic rights attendant to the rule of law should be owed to all parties regardless of their citizenship.

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right to be sui juris; (2) provide a strong consent requirement; and (3) ensure that liability rules

track responsibility. On the equality dimension, foreign law must not discriminate in private

law on the basis of some immutable characteristic.

Part IV: David Dyzenhaus’ Theory of Common Law Constitutionalism

A. Dyzenhaus’ Theory of the Rule of Law With Allan’s view set out, the next question is the extent to which his account is shared

by other thinkers in the common law constitutionalist tradition. The other leading thinker in

this tradition is David Dyzenhaus. Allan and Dyzenhaus frequently suggest that they espouse

different conceptions of the rule of law. They agree that Allan’s account is ‘thicker’ and

Dyzenhaus’ is ‘thinner.’149 Dyzenhaus argues that Allan provides a distinctly ‘liberal’

conception of the rule of law, while he rejects the connection between the rule of law and

liberalism.150 Given that they take each other to provide different accounts of the rule of law’s

content, would Dyzenhaus agree that the principles of Allan’s account that apply in the context

of the public policy exception are essential aspects of the rule of law?151

While Dyzenhaus and Allan take themselves to be offering different accounts, a careful

review indicates that Dyzenhaus has explicitly accepted most of the premises on which Allan’s

149 See e.g. Allan, ‘Foundation of Judicial Review,’ supra note 49, in which Allan says his account is thicker than Dyzenhaus’; Dyzenhaus, ‘Form and Substance,’ supra note 9 at 162-168, 171 (arguing that Allan’s account is too substantive); Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 95. 150 Dyzenhaus seeks to avoid connecting the rule of law to any particular political ideology by focusing on law’s formal attributes. Dyzenhaus, ‘Form and Substance,’ supra note 9 at various; David Dyzenhaus, ‘Recrafting the Rule of Law’ in David Dyzenhaus, ed, Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999) 1 at 3, 7 (describing the liberal anti-positivist tradition and his attempt to forge a different path) [Dyzenhuas, ‘Recrafting the Rule of Law’]; Dyzenhaus, Constitution of Law, supra note 3 at 10. 151 Answering this question is challenging because Dyzenhaus has been less focused than Allan on specifying what he takes to be the content of the rule of law. For example, in The Constitution of Law, Dyzenhaus states in the introduction that ‘I will not at any point go into much detail about what I claim to be the content of the rule of law.’ Dyzenhaus, Constitution of Law, supra note 3 at 12. As I note above, this may be because he wants to avoid endorsing a ‘checklist’ account of the rule of law and instead to argue in favour of a ‘culture of legality.’ This difficulty is also amplified by Dyzenhaus’ choice to approach the question of what constitutes the rule of law through an exposition of the views of other thinkers, including Fuller, Hobbes, Dworkin, Oakeshott, and Hayek.

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account is based.152 Like Allan, Dyzenhaus seeks to provide a moral, non-positivist account of

the rule of law. Also like Allan, Dyzenhaus argues that there are moral principles internal to

the form of law that are constitutive of legality,153 which are developed and articulated by the

common law over time,154 and which are necessarily attendant to the form of law itself.155

In terms of the content of these principles of legality, Dyzenhaus is also largely in

agreement with Allan. He accepts that the rule of law requires protection from arbitrary

power.156 In particular, he endorses the republican approach to freedom,157 and argues that

‘liberty as independence is indeed the core idea of the immanent morality of law.’158

Dyzenhaus also agrees with Allan that law is constitutive of liberty; law is not an impediment

to freedom but rather an essential aspect of it.159 Dyzenhaus also accepts and elaborates Allan’s

argument that the form of law requires that the legal subject be treated a certain way: as moral

agent, a bearer of human rights, and as free and equal.160 He agrees that slavery is paradigmatic

152 As Thomas Poole argues, we should not allow the differences in the way in which Allan and Dyzenhaus present their accounts to ‘obscure the fundamental congruence of the two approaches. As Dyzenhaus himself acknowledges, “much of what I write about the rule of law is inspired by Trevor Allan, whose book on the rule of law is, in my view, the most important work on the topic since AV Dicey.”’ Poole, ‘Constitutional Exceptionalism,’ supra note 4 at 261. 153 Law ‘must be legal.’ By this, Dyzenhaus means that law must conform with certain principles of legality, which have moral content. Dyzenhaus, ‘Compulsion of Legality,’ supra note 7 at 35. 154 Dyzenhaus, Constitution of Law, supra note 3 at 4. 155 Ibid. 156 Ibid; David Dyzenhaus, ‘Rand’s Legal Republicanism’ (2010) 55 McGill LJ 491 at 500 [Dyzenhaus, ‘Rand’s Legal Republicanism’]; Dyzenhaus, ‘Compulsion of Legality,’ supra note 7 at 35. 157 That is, as non-domination and protection from arbitrary power. See e.g. Dyzenhaus, ‘Rand’s Legal Republicanism,’ supra note 156; Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 95. 158 Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 95. See also Dyzenhaus, ‘Freedom under an Order of Public Law,’ supra note 75. 159 See generally Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24; Dyzenhaus, ‘Freedom under an Order of Public Law,’ supra note 75. Law ‘enables individuals to interact in ways that conduce to them achieving their own ends. Law is, then, a necessary condition to a particular kind of liberty, the kind of liberty one enjoys under an order of public laws.’ Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 93 (emphasis in original). He introduces a metaphor of law as hedge: like a hedge, which sets out pathways for walking, the law makes choices about which ways for the individual it is possible to go, and shapes the choices that are open to the individual. But ultimately the law (like a series of hedges) leaves the decision about which way to go up to the individual. This metaphor is taken from Hobbes. Dyzenhaus, ‘Freedom under an Order of Public Law,’ supra note 75. 160 David Dyzenhaus, ‘Process and Substance as Aspects of the Public Law Form’ (2015) 74:2 Cambridge LJ 284 at 296 (discussing Fuller’s conception of moral agency) [Dyzenhaus, ‘Process and Substance’]; Dyzenhaus,

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of a violation of the legal subjecthood of persons, and accepts the sui juris requirement.161 And

he emphasizes that human rights law is essential to the construction of the legal subject.162

Given these striking similarities between Allan and Dyzenhaus’ accounts, what are the

fundamental differences between their views? Crucially, the two thinkers place a

fundamentally different emphasis on the substantive implications of formal principles of

legality, adopting different conceptions of formalism. Allan’s view distinguishes between

‘formal’ and ‘substantive’ rule of law principles; and it is the substantive aspect of the rule of

law that requires the law to respect things like equality and fundamental rights. While form

and substance are connected, they are capable of being distinguished, and law’s formal features

alone are insufficient to safeguard the rule of law. Dyzenhaus structures his analysis quite

differently, arguing that the formal aspects of the rule of law alone generate certain substantive

requirements for law’s content, and that there is not a separate and distinct set of substantive

features of the rule of law.

To establish this claim, Dyzenhaus relies extensively on the work of Lon Fuller. He

argues that law’s formal features provide a mechanism by which certain moral norms become

clarified in the law over time, as it ‘works itself pure.’ Law’s form requires certain moral

principles to be instantiated in the law. The view is more than the mere idea that moral norms

provide a way of orienting the rule of law towards certain moral ends. Rather, law’s formal

features have moral implications for the content of the law in an almost mechanistic way.

Constitution of Law, supra note 3 at 13 (bearer of human rights); Dyzenhaus, ‘Rand’s Legal Republicanism,’ supra note 156 at 503, 510 (free and equal). 161 Dyzenhaus, ‘Freedom under an Order of Public Law,’ supra note 75; David Dyzenhaus, ‘The Legitimacy of the Rule of Law’ in David Dyzenhaus, Murray Hunt, & Grant Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford: Hart Publishing, 2009) 33 at 46 [Dyzenhaus, ‘Legitimacy of the Rule of Law’]: ‘In a slave-owning society, the slaves are no more subject to the rule of law than is my computer. Only human beings are subject to the rule of law and slaves are deemed to be non-human by law, a deeming that removes them from the protection of the rule of law.’ 162 Dyzenhaus, Constitution of Law, supra note 3 at 13.

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Liberty and equality are part of law’s form in a deep, foundational sense. For example,

Dyzenhaus argues that Fuller’s ‘generality’ requirement for law’s form generates a moral

principle that the law treat people equally.163 He invokes Fuller’s account of how compliance

with the principles of the inner morality of law generate reciprocity between ruler and ruled

and thus account for law’s liberty enhancing character.164 And he relies on Fuller’s theory that

the formal aspects of the rule of law generate the requirement that law treat people as agents,

which in turn requires the law to respect basic liberties and rights protections.165

Thus while Allan argues that the requirement of protecting freedom as independence

requires both formal and substantive principles to be respected, Dyzenhaus argues that it is

formal principles alone that protect freedom as independence.166 Form does the heavy lifting

by implying substantive requirements for the law’s content. But Dyzenhaus is also confined to

this formal picture, as he does not argue for additional substantive requirements. It is in this

sense that his account is ‘thinner’, and less ‘liberal,’ than Allan’s. But this difference in the

work done by the formal principles of the rule of law does not seem to make much difference

in terms of the content that the core of the rule of law requires, as outlined above.

Their different understandings of the implications of law’s form points to a second

distinction between the two thinkers: Dyzenhaus is more tentative about what the rule of law

requires for a system of private law. Recall that Allan argues that the rule of law, understood

as freedom as independence, requires individuals to be protected from arbitrary interference

by both public and private actors. As such, the rule of law requires certain protections for

163 See e.g. Dyzenhaus, ‘Process and Substance,’ supra note 160 at 303. 164 Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24. 165 Dyzenhaus, ‘Process and Substance,’ supra note 160. 166 As he puts it, Dyzenhaus argues that ‘legal form is not merely necessary for liberty of this kind but also sufficient.’ Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 96.

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individuals in private law. Dyzenhaus agrees with Allan that the rule of law requires

individuals to be protected from domination, from both public and private actors; and he

accepts that the core of the rule of law is to be directed towards securing freedom as

independence for individuals. But he is more ambivalent about the role that private law must

play in that picture. In particular, Dyzenhaus rejects the view that the rule of law requires that

there be a domain of private law, and the view that private law is in some sense normatively

prior to public law.167 He is critical of Kantian arguments regarding the distinction between

corrective and distributive justice, and indeed is skeptical of any sharp distinction between

public and private law. Instead, Dyzenhaus argues that there is only one constitutive principle

of authority with which the law must comply: law must be legal – by which he means that law

must conform with Fuller’s formal features. But the construction of different domains of

private and public law is not required by this constitutive principle of authority.

Dyzenhaus takes this to be a disagreement with Allan’s position.168 But in response,

Allan states that he does not ‘insist on the priority of private law in the extended sense that

David Dyzenhaus … describes.’169 Allan argues that his view does not require legal systems

to adopt any particular system of private law, only that it must include principles that secure a

certain type of freedom for individuals. He denies that a complete system of corrective justice

is necessary; for example, a no-fault insurance scheme could replace tort law, while remaining

consistent with his moral theory of the rule of law.170 Thus while Dyzenhaus takes himself to

be disagreeing with Allan about the extent to which a system of private law is necessitated by

167 Ibid at 109-115. 168 Ibid at 110 n 68. 169 Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 91 n 78. 170 Ibid. Recall also that Allan understands his conception of the rule of law to be consistent with very different types of social and economic systems. Allan, Sovereignty of Law, supra note 41 at 123.

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their (largely) shared understanding of the rule of law, Allan does not see this to be a point of

disagreement. The difference between the two on this point may therefore be largely illusory.

So while Dyzenhaus may understand his account to be thinner, less ‘liberal,’ less ‘private,’ and

more ‘formal’ than Allan’s, the differences between the two may not be significant.

Most importantly for our purposes, Dyzenhaus’ account of the rule of law arguably

includes the liberty and equality dimensions from Allan’s account. We can begin by examining

the liberty dimension, which includes at least three subsidiary principles that could apply in

the context of public policy: the sui juris requirement, the consent requirement, and the

responsibility requirement. Dyzenhaus most clearly accepts the sui juris requirement. He

frequently invokes the republican argument that slavery is a denial of liberty inconsistent with

law’s form.171 He also argues that law’s form will make unequal denial of status, in which

some people are subjugated to the will of others and so denied the status of responsible moral

agent, an unstable system.172 Dyzenhaus also accepts the sui juris requirement in his discussion

of Fuller’s treatment of individual agency. As Dyzenhaus explains,173 Fuller argues that law’s

formal features require treating the law’s subjects as responsible moral agents.174 Law can be

distinguished from mere ‘managerial’ order in the sense that it governs through general rules

that set out requirements for individual behaviour, and not through a ‘one-way projection of

171 Dyzenhaus, ‘Legitimacy of the Rule of Law,’ supra note 161; Dyzenhaus, ‘Rand’s Legal Republicanism,’ supra note 156; David Dyzenhaus, ‘Dreaming the Rule of Law’ in David Dyzenhaus & Thomas Poole, eds, Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge, UK: Cambridge University Press, 2015) 234 [Dyzenhaus, ‘Dreaming the Rule of Law’]; Dyzenhaus, ‘Freedom under an Order of Public Law,’ supra note 75. 172 David Dyzenhaus, ‘Dworkin and Unjust Law’ in Wil Waluchow & Stefan Sciaraffa, eds, The Legacy of Ronald Dworkin (Oxford: Oxford University Press, 2016) 131 at 158 n 108 [Dyzenhaus, ‘Dworkin and Unjust Law’]. 173 See e.g. Dyzenhaus, ‘Process and Substance,’ supra note 160. At several places, Dyzenhaus draws from Kristen Rundle’s book, which develops the connection between Fuller’s account and the treatment of the legal subject as a responsible moral agent. Rundle, Forms Liberate, supra note 8; Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24. 174 Fuller says that law can be neutral over many different subjects but not neutral in its view of the legal person. Fuller, Morality of Law, supra note 32 at 162.

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authority.’175 This ‘mode of governance through general rules’ presupposes that the legal

subject is a responsible moral agent who can choose whether or not to conform her behaviour

to these requirements, and who can be held responsible for failures to comply with those

requirements.176

If the form of law requires that individuals be treated as responsible moral agents, then

the law cannot countenance structures that deny the agency of persons. It is on this basis that

Kristen Rundle has argued that Fuller’s theory prohibits slavery, a structure that by definition

subjugates one person’s agency to another.177 For these reasons, we can readily conclude that

Dyzenhaus would accept that the sui juris requirement is a necessary part of the rule of law.

The consent requirement at first appears to be a bit more tenuously connected to his

account, because Dyzenhaus does not comment on the question of whether the rule of law

requires individuals to be protected from interference from other private persons unless they

consent to such interference. But as with Allan, the consent requirement is a necessary

corollary of Dyzenhaus’ view. First, it is necessitated by the Fullerian picture from which

Dyzenhaus draws so extensively. As Dyzenhaus argues, Fuller generates his account of the

rule of law in the public law context to show that there is reciprocity, interaction, and respect

for agency even in conditions where it seems least likely: in the vertical relationship between

governor and governed. But, as Dyzenhaus tells us, Fuller also assumes that private law would

exhibit these features, because they occur more obviously and readily in the horizontal context,

175 Ibid at 204, 212. 176 Rundle, Forms Liberate, supra note 8 at 98. Or as Fuller puts it, ‘To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.’ Fuller, Morality of Law, supra note 32 at 162. It is for this reason that Fuller concludes that a departure ‘from the principles of the law’s inner morality is an affront to man’s dignity as a responsible agent.’ Ibid. 177 Rundle, Forms Liberate, supra note 8 at 113; see also the discussion of Evan Fox-Decent’s work, infra Part V.

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where legal duties and rights are generally assumed voluntarily.178 As Dyzenhaus writes,

‘Fuller himself said that legal (and moral) duties become “most acceptable” when created out

of a “voluntary agreement”, in which the performance of the parties is “equal in value”, and

“reversible” so that I could owe you tomorrow the duty that you owe me today.’179 Thus for

Fuller and for Dyzenhaus, a voluntary, consensual private law arrangement is the paradigmatic

example of a legitimate legal duty. A consent requirement in private law thus seems highly

consonant with Fuller’s account. A consent requirement also fits with Fuller’s theory of

agency, whereby the law must treat individuals as responsible moral agents if it is to count as

law at all. If one person could legally force another person to do something by using her body

without her consent, this would be problematic from the perspective of agency and the sui juris

requirement.

Dyzenhaus’ acceptance of the republican account of liberty as independence also

makes the consent principle a necessary requirement of the rule of law. As I argue above, a

republican theory of freedom requires that individuals be free from the arbitrary interference

of both private and public actors. This entails a consent requirement in relation to private

parties – if other private persons get to interfere with my body without my say so, this permits

precisely the type of domination that the law is meant to prohibit. If Dyzenhaus believes that

the rule of law’s immanent morality is to protect freedom as independence, he must accept

something like a consent requirement as a necessary aspect of private law.180

178 Dyzenhaus, ‘Liberty and Legal Form,’ supra note 24 at 98, 105. 179 Ibid at 98. 180 Dyzenhaus’ use of Hobbes’ hedge metaphor also strongly implies something like a consent requirement. If the purpose of the law is to provide me with pathways by which I can choose how to live my life, it would be extremely odd if other people could in a sense ‘block’ my pathway by using my body without my consent. If liberty through law is to mean anything, it must mean the right to decide what to do with myself – what pathways to choose. And that entails that others do not have a right to choose for me.

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While Dyzenhaus is skeptical that the rule of law requires any particular structure of

private law, particularly a Kantian conception of corrective justice, it is important to note that

a very basic consent requirement does not entail a correlative structure of liability. Ensuring

that the law prohibits one person from interfering with another without their consent does not

necessarily mean that violations of such a principle are resolved through correlative liability –

the tortfeasor does not necessarily need to be liable to the victim.181 Thus a consent requirement

does not entail a correlative system of justice; it is a much more mild requirement that could

be conceived of in multiple ways.

The final aspect of the liberty dimension is the responsibility principle – the idea that

liability should generally track the agency of persons. In other words, we can hold people liable

for things that they do, but not things that they do not do. Dyzenhaus does not explicitly

consider this principle in his work. But Fuller does: he argues at length in The Morality of Law

that his conception of individual agency that is entailed by law is exemplified by ‘the concept

of responsibility’ in law.182 This idea includes, he argues, the intent and fault requirements of

both public and private law, and is necessarily derived from the idea that the law must treat

individuals as agents.183 As noted above, if the law can hold people responsible for things that

they do not do, then the law acts on people as if they are ‘helpless victims of outside forces.’184

For Fuller, then, responsibility and agency are intimately linked. If Dyzenhaus wishes to hang

his hat on Fuller’s account of law’s inner morality and its corollary requirement that the law

181 Instead, we could separate their liability, for instance through a system of no-fault insurance and punishment of the tortfeasor. See Allan, ‘Rule of Law as Rule of Private Law,’ supra note 11 at 91 n 78. 182 Fuller, Morality of Law, supra note 32 at 167 and discussion above. 183 Ibid. 184 Ibid.

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treat people as responsible moral agents, he too should accept that responsibility is an essential

aspect of the rule of law, in both public and private law.

Finally, even if Dyzenhaus is skeptical that the rule of law necessarily entails creating

a system of private law with these liberty-securing features, he would likely accept that if there

is a system of private law in existence, as a matter of positive law, it would have to comply

with these features. In the context of the public policy exception, the doctrine only comes into

play if there is a foreign private law in existence that can be evaluated – if there is already a

system of private law in place in the foreign jurisdiction. The public policy inquiry is not

whether a system of private law should exist, but rather that given that it does exist, what

features must it have to be legitimately applied by the forum. In this context, Dyzenhaus should

have no quarrel with the use of the liberty dimension of freedom as independence to evaluate

the content of foreign private law through this rule of law lens.

The equality dimension is a more central aspect of Dyzenhaus’ work, and thus it is

clearer that he would accept that it is an essential part of the rule of law. Throughout his

writings, he frequently argues that the equal treatment of legal subjects is an essential part of

the rule of law.185 Equality is a fundamental aspect of law’s form; the law cannot consistently

treat some groups as being entitled to rights that are denied to others.186 Discrimination creates

an essential lack of logic in the law, as it tries to both deny and accommodate the rights and

obligations of certain persons on the basis of immutable categories. While this is partly a

theoretical claim, Dyzenhaus also argues that he has ‘marshaled considerable evidence’ in

185 See e.g. David Dyzenhaus, ‘The Rule of (Administrative) Law in International Law’ (2005) 68 Law & Contemp Probs 127 [Dyzenhaus, ‘The Rule of (Administrative) Law’]; Dyzenhaus, ‘Dreaming the Rule of Law,’ supra note 171; Dyzenhaus, ‘Freedom under an Order of Public Law,’ supra note 75; David Dyzenhaus, ‘Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought’ (2015) 16:2 Theor Inq L 337; Dyzenhaus, Constitution of Law, supra note 3 at 13 (part of his definition of the rule of law). 186 Dyzenhaus, ‘Dworkin and Unjust Law,’ supra note 172.

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support of this argument, in his studies of apartheid South Africa, the Weimar legal order, and

the legal response to 9/11.187 He draws examples from racial, gender, and citizenship-based

discrimination.188 He also argues that furthering the cause of substantive equality is a principle

derived from the republican approach.189 Thus while his rationale for holding that

discrimination is constrained by law’s form is different from Allan’s, who argues that we must

go beyond the merely formal requirements of law to secure it, his conclusion is very similar.

Finally, we can consider whether Dyzenhaus would accept that these principles should

be applied in the transnational context. On this front, Dyzenhaus is perhaps even clearer than

Allan that the rule of law knows no jurisdictional boundaries. Like Allan, he grounds his

analysis in the particulars of the common law tradition; but also like Allan, he derives his

account of the rule of law from the nature of legality in general. There is therefore a universal

aspect to his theory – it is generated by the form of law itself and not simply by the common

law or commonwealth tradition. Dyzenhaus also goes beyond a general appeal to the

universality of the principles of legality, explicitly arguing that the rule of law must apply in

the transnational context. He does this by arguing that non-citizens enjoy the protection of the

rule of law and must be treated by courts as such;190 by connecting his conception of the legal

subject that is entailed by the rule of law to universal human rights;191 and by arguing that there

is a fundamental unity of international and domestic law, in that both are governed by the

187 Ibid at 156. 188 Ibid; Dyzenhaus, Hard Cases in Wicked Legal Systems, 2d ed, supra note 13; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997); Dyzenhaus, Constitution of Law, supra note 3. 189 Dyzenhaus, ‘Rand’s Legal Republicanism,’ supra note 156 at 499. 190 Dyzenhaus, Constitution of Law, supra note 3 (in his various discussions of the Belmarsh decision). 191 Ibid at 13.

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formal features of the rule of law.192 Dyzenhaus is committed to the view that the rule of law

transcends borders. It is owed to the subjects of law due to the very form of law itself, and the

nature of the exercise of public power.

On the basis of this analysis, we can conclude that while Dyzenhaus and Allan may

articulate somewhat different versions of the content of the rule of law, ultimately they would

not disagree about the content of the rule of law that could be used in the context of public

policy. While Dyzenhaus disagrees with Allan about the implications of law’s form and about

the role of private law, he still accepts that the rule of law is directed towards securing freedom

as independence, including the liberty and equality dimensions of that principle, and their

particular manifestations in the context of private law.

B. Dyzenhaus’ Disagreement over Remedies

Beyond their apparent disagreement about the content of the rule of law, Allan and

Dyzenhaus also adopt different perspectives on the role of judges in maintaining the rule of

law. Allan, as discussed above, argues for what has been termed ‘strong form’ judicial

review.193 Courts, he suggests, should have the power, as a result of the logic of the separation

of powers alone, to invalidate statutes that they conclude violate the rule of law.194 By contrast,

Dyzenhaus’ view is best characterized as a form of weak judicial review: he claims that courts

generally only have the power to invalidate statutes if they are granted this capacity by positive

law.195 Instead, the rule of law is best achieved through a ‘culture of legality’ or a ‘rule-of-law

192 Ibid at ch 4; David Dyzenhaus, ‘Baker: The Unity of Public Law?’ in Dyzenhaus, Unity of Public Law, supra note 49, 1 at 1; David Dyzenhaus, ‘Monism and Dualism’ (on file with author). See also Mark D Walters, ‘The Common Law Constitution and Legal Cosmopolitanism’ in Dyzenhaus, Unity of Public Law, supra note 49, 431. 193 See Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale LJ 1346 at 1354 (distinguishing between strong and weak form judicial review). 194 See Allan, ‘In Defence of the Common Law Constitution,’ supra note 49; Allan, ‘Rule of Law,’ supra note 49 at 204. 195 However, Dyzenhaus’ view is complex in this regard – he has always argued that certain statutes are void ab initio, such as bills of attainder.

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project,’ in which all three branches of government undertake a duty to uphold the rule of

law.196 The role of judges in the absence of judicial review is ‘modest’197 but ‘essential.’198

First, judges have an important interpretative function: they must interpret statutes in light of

unwritten constitutional values to bring the law into conformity with the rule of law.199 Second,

if it is not possible to interpret a statute consistently with the rule of law, judges should act as

a ‘weatherman,’ alerting the public to ‘the storm clouds on the horizon when the rule of law

which secures the fabric of civil society is put under strain.’200 So even without the power of

invalidation, the judge must remain vigilant against violations of the rule of law.201

Given this more limited account of the judicial role, would Dyzenhaus accept the

remedy of non-application of foreign law in the public policy context? This remedy was

originally developed by common law judges,202 and thus resembles the type of sua sponte

judicial review that Dyzenhaus thinks is problematic. For several reasons, however, I think

that Dyzenhaus would accept that it is permissible (and indeed is required) for the forum court

to refuse to apply foreign private law that violates the rule of law and instead apply the forum’s

law.

The first reason why Dyzenhaus would accept this remedial approach is because it is

widely accepted as a matter of practice. Dyzenhaus disagrees with Allan that judges have the

power to strike down domestic statutes in constitutional circumstances where that power is not

196 ‘Ultimately … as Dicey so clearly saw, it is we the people’s dedication to a culture of legality that is the guardian of the constitution.’ Dyzenhaus, Constitution of Law, supra note 3 at 233. It is important to note, however, that Allan does not disagree with this idea. For example, in The Sovereignty of Law he argues that all three branches must be involved in upholding the rule of law. Allan, Sovereignty of Law, supra note 41 at ch 3. 197 Ibid at 12. 198 Ibid at 11. 199 Ibid at 8. 200 Contra Bob Dylan, and following Hobbes: Dyzenhaus, Constitution of Law, supra note 3 at 12. 201 Ibid at 217. 202 See Chapter 1, Part I.

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already instantiated as a matter of positive law. But the public policy exception, along with its

remedial aspect, has been an established part of the positive law of choice of law doctrine for

centuries.203 Thus even on Dyzenhaus’ limited theory of invalidation, this is such a widely

accepted practice that Dyzenhaus would likely have no complaint.

Dyzenhaus should also accept that it is permissible for courts to refuse to apply foreign

law that violates the rule of law because the other remedial options he points to are not

available in this context. When confronted with a foreign law that violates the rule of law, the

court is not able to adopt a different interpretation of that law. In the choice of law context,

foreign law is introduced through expert evidence as a fact; so as a doctrinal matter,

interpreting the law in conformity with the rule of law is understood to be off the table.204 The

‘weatherman’ function is also unavailable in the public policy context. Dyzenhaus envisages

a court indicating to the public that the legislature is not abiding by the rule of law, so that such

a declaration can inspire the legislature (and the people) to bring the law into compliance with

the rule of law. But this function is much less likely to work in the private international law

context. It seems highly unlikely, for instance, that a foreign legislature would remedy a breach

of the rule of law in response to the forum court’s warning of such a violation.

Finally, Dyzenhaus should not object to the public policy remedy because refusing to

apply a particular foreign law in a particular instance is simply not the same as striking down

203 See supra Chapter 1. Note, though, that Dyzenhaus would use the word ‘actual’ instead of positive. David Dyzenhaus, ‘The Idea of a Constitution: A Plea for Staatsrechtslehre’ in Dyzenhaus & Thorburn, Philosophical Foundations, supra note 11, 9 at 12. 204 It is also difficult to understand how the Dworkinian interpretative approach could be available in the choice of law context, when a court is confronted with a foreign law. In a purely domestic legal system, a court can interpret a particular law so that it ‘fits’ with the overall moral and legal framework in which the law is operating, to best protect the legality of the system as a whole. But with a foreign state’s law, the law is shorn of this context. Even if judges were to interpret the foreign law and not treat it as a ‘fact,’ they would have a very limited ability to bring that law into conformity with the broader conception of legality adopted by the foreign state as a whole. Indeed, it is difficult to know how a judge would even attempt such an interpretation. The interpretative option, then, seems highly inappropriate in the private international law context.

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a statute, as discussed above.205 A court granting itself the power to invalidate or strike down

a law means that it can render that law inapplicable in all circumstances going forward. By

contrast, refusing to apply a law on the basis of public policy says nothing about the law’s

validity as a general matter – the law is still valid in relation to its domestic jurisdiction. Non-

application of foreign law by the forum court in the context of the public policy exception is a

much more limited remedy than invalidity.

Part V: Other Common Law Constitutionalists

Since two of the leading common law constitutionalists, Allan and Dyzenhaus, are in

basic agreement about the principles of the rule of law that could apply in the public policy

context, the final question to ask is whether other thinkers in this tradition would agree.

Without going into detail of the accounts of other relevant thinkers, it seems clear that they

would broadly accept the approach I articulate in this chapter.

Take, for example, Sir John Laws, who is another important figure in the common law

constitutionalist tradition. Laws argues that the rule of law, or what he calls a ‘good

constitution,’206 requires respect for the autonomy of the law’s subjects. Laws begins with an

Aristotelian teleological argument: that institutions must be ‘in harmony with the nature of

those who belong to it.’207 Man’s distinctive nature is ‘as an autonomous moral being,’ which

arises from our capacity for reason, our free will, and our co-existence with others persons in

society.208 To promote human flourishing in accordance with our distinctive nature, our

institutions – including the law – must respect the autonomy of persons. This requires

205 See supra note 47 and accompanying text. 206 Laws explains that his constitutional principles are ‘intimately connected with the rule of law.’ Sir John Laws, ‘The Constitution: Morals and Rights’ (1996) Public Law 622 at 627-628. 207 Ibid at 623. 208 Ibid at 623-627.

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adherence to fundamental human rights obligations and respect for the equal rights of all legal

subjects, including non-discrimination obligations.209

Laws’ claim that the rule of law must ensure that the autonomy of the legal subject is

protected is strikingly similar to Allan’s account of freedom as independence and Dyzenhaus’

focus on individual agency.210 Indeed, Laws’ dual emphasis on liberty (or autonomy, as he

puts it) and equality is also very similar to Allan’s approach. Thus (at least at a certain level of

generality) Laws’ account is in accordance Allan’s and Dyzenhaus’, in accepting that the rule

of law must protect the fundamental liberty and equality of persons.

Dawn Oliver places a similar emphasis on liberty and equality as fundamental to legal

ordering. Among her intellectual projects has been an effort to identify the values she perceives

to be common to both public and private law in the common law tradition. The five values she

enumerates are what she calls autonomy, dignity, equal respect, status, and security.211 These

values paint a picture of the rule of law in the common law tradition that is committed to

ensuring the basic freedom and self-government of persons (autonomy, dignity, and security);

that protects people from arbitrary and unpredictable interference (autonomy and security);

and that ensures that these guarantees are met equally to all of the law’s subjects (equal respect

and status). These values, Oliver argues, inhere in both public and private law in the common

law tradition. While these values are not always invoked in these terms in legislation or by the

courts, Oliver argues that they are among the core norms that drive the law, and they can be

209 ‘The true starting-point in the quest for the good constitution consists in … the autonomy of every individual, in his sovereignty. It is reflected, but not defined, in modern liberal thinking which excoriates discrimination. It is the ideal which drives all the post-war international human rights texts. It is expressed in the well-known Kantian perception that the individual is an end in himself, never a means.’ Ibid at 623. 210 For a discussion of the common law constitutionalists’ agreement on this point, see Poole, ‘Back to the Future?’ supra note 2 at 440-441. 211 Oliver, Common Values, supra note 10 at ch 3.

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observed at work in a range of instances.212 Oliver’s account thus mirrors many aspects of

Allan’s approach. Her focus on autonomy, freedom, and equality is very similar to the

principles we have seen at play in the work of Dyzenhaus and Allan, and she too believes that

these values inhere in both the public and private law contexts.

Finally, we can consider the work of Evan Fox-Decent, who is best known for his work

(sometimes with Evan Criddle) developing a fiduciary theory of public law, whereby public

authorities have certain obligations to law’s subjects generated by the trust-like relationship

between governor and governed.213 Fox-Decent has argued that his fiduciary theory has

important implications for the rule of law,214 and that this account can map on to the common

law constitutionalist theory of the rule of law.215 Fox-Decent generates his account of the

fiduciary obligations owed from ruler to ruled by drawing on the republican account of non-

domination and the Fullerian and Kantian accounts of agency.216 His fiduciary theory generates

the conclusion that the rule of law requires respect for human rights, including the right to be

sui juris.217 The rule of law also requires private law to prohibit ‘unilateralism,’ or a situation

in which one person inflicts their will on another without that person’s consent. Fox-Decent

(following Fuller) also argues that the rule of law requires that law be structured around the

responsibility of individual agents.218 And he repeatedly emphasizes the need for the law to

212 Ibid. 213 See e.g. Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011 [Fox-Decent, Sovereignty’s Promise]; Evan J Criddle & Evan Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (Oxford: Oxford University Press, 2016). 214 See e.g. Fox-Decent, Sovereignty’s Promise, ibid, ch 9 (The Rule of Law and Human Rights); Evan Fox-Decent, ‘Is the Rule of Law Really Indifferent to Human Rights?’ (2008) 27 Law & Phil 533 [Fox-Decent, ‘Is the Rule of Law Really Indifferent to Human Rights?’] 215 Evan Fox-Decent, ‘Democratizing Common Law Constitutionalism’ (2010) 55:3 McGill LJ 511. 216 Fox-Decent, Sovereignty’s Promise, supra note 213, ch 9; Fox-Decent, ‘Is the Rule of Law Really Indifferent to Human Rights?,’ supra note 213. 217 Ibid. 218 Ibid.

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protect the equality of persons.219 Fox-Decent’s account, then, also follows Allan’s position

quite closely.

Conclusion

My project seeks to provide an account of the public policy exception in common law

choice of law rules. The theory I have proposed is that the use of the exception is likely to track

the rule of law as it has been understood by the common law constitutionalists, who argue that

the rule of law requires adherence to the fundamental values of legality that have been

articulated in the common law tradition. Testing this theory, however, requires us to first

identify the principles of the common law constitutionalist account of the rule of law that could

actually apply in the public policy context. This chapter has sought to do so, taking account of

important differences among common law constitutionalists; the fact that they do not fully

specify the rule of law principles required by their account; and the fact that they disagree

about the remedial implications of the rule of law. I approached this question by focusing on

the work of TRS Allan and David Dyzenhaus, two central thinkers in the common law

constitutionalist tradition.

I began by examining Allan’s theory of the rule of law. Allan argues that the rule of

law requires the law to secure freedom as independence for its subjects – the law must respect

the autonomy and dignity of persons by ensuring that they not be subject to arbitrary power or

domination by others. This entails securing a domain of freedom in which individuals can be

free from the choices of others (the liberty dimension of his account) and protected from

arbitrary discrimination (the equality dimension of his account). While Allan portrays his

theory as a normative ideal to which all law should be oriented, he also makes clear that there

219 Ibid.

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are certain basic substantive requirements with which the law must comply – and if a particular

positive law does not comply with those requirements, courts must refuse to apply that law.

On the liberty dimension, this requires respect for the basic rights that are central to the

autonomy and independence of persons; and on the equality dimension, this prohibits making

legal distinctions among individuals on the basis of immutable characteristics.

Allan is clear that private law has an essential role to play in upholding the rule of law,

and that the liberty and equality dimensions of freedom as independence are equally important

in the context of private law. On the liberty front, private law must secure for individuals a

core domain of autonomy by, inter alia, ensuring that each person has the right to be sui juris

(their own master); including a consent requirement prohibiting non-voluntary interference

with other people; and ensuring that liability tracks the responsibility of the legal subject. On

the equality dimension, private rights must not be granted on a discriminatory basis, such as

race, gender, or sexual orientation.

While other thinkers in this tradition differ from Allan in important ways, they would

nonetheless embrace the overarching principles that I argue are necessary components of the

rule of law on a common law constitutionalist account. David Dyzenhaus, Sir John Laws,

Dawn Oliver, and Evan Fox-Decent would accept that the essential principles of legality in

private law that I identify are fundamental aspects of the rule of law.

Having identified the relevant rule of law principles of the common law tradition, we

can now begin to test my theory: we can explore whether these principles inform judicial

reasoning in the public policy context. In Chapter 3, I examine the ways in which the liberty

dimension of the common law constitutionalist account is immanent in the public policy case

law; and in Chapter 4, I consider the equality dimension.

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CHAPTER 3

THE PUBLIC POLICY EXCEPTION AND THE LIBERTY DIMENSION OF

THE COMMON LAW CONSTITUTIONALIST ACCOUNT OF THE RULE OF LAW Introduction

In this chapter, I will begin to explore whether adopting a common law constitutionalist

approach to the public policy exception in choice of law can account for the way the doctrine

has been used by English and Canadian courts. In particular, I will examine whether the

reasons courts use to refuse to apply foreign law on public policy grounds are rooted in the

substantive rule of law values identified by common law constitutionalists as essential

principles of legal orders in the common law tradition.

As I explained in Chapter 2, common law constitutionalists claim that the rule of law

requires the law to secure the freedom as independence of its subjects. The law must protect

the autonomy and dignity of persons by ensuring that they are not subject to the arbitrary power

of or domination by others. This entails securing a domain of freedom in which individuals

can be free from the choices of others (the liberty dimension of the account) and protected

from arbitrary discrimination and differential treatment (the equality dimension of the

account). In this chapter, I consider whether the liberty dimension of the account is reflected

in the public policy exception jurisprudence, and in the next chapter I consider the equality

dimension of the account.

In Chapter 2, I also broke down the liberty dimension of the common law

constitutionalist account of the rule of law into three principles:1 (1) each person has a right to

1 Recall that as I argued in Chapter 2, these were common law constitutionalist principles which were potentially applicable to the specific doctrinal context in which the public policy exception operates: when the question is whether public policy should be invoked in order to refuse application of substantive foreign private law in a case

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be her own master, so that no private person is in charge of anyone else (the sui juris

requirement); (2) the law must prohibit non-consensual interferences from other private parties

(the consent requirement); and (3) private law liability must be imposed in a manner that

respects the responsible agency of persons (the responsibility requirement). This breakdown

helps focus the inquiry in this chapter: we can examine whether the reasons that judges have

given for refusing to apply foreign law as a matter of public policy track these fundamental

liberty principles of the common law constitution. In practice, do these principles play a role

in judges’ evaluation of foreign law when they invoke the public policy exception? Is the

public policy inquiry connected to these substantive rule of law values?

In this chapter, I explore these questions by examining three canonical public policy

cases in the common law tradition: Somerset v Stewart,2 Kaufman v Gerson,3 and The Halley.4

These three English cases are among the best-known common law choice of law judgments.

Somerset’s case (from 1772), in which Lord Mansfield refused to apply Virginia law

that permitted chattel slavery, is the ‘most famous’5 and ‘one of the oldest recorded’6 uses of

the public policy exception. While some scholars have criticized the case’s holding for not

with transnational elements. These principles were meant to be exemplary but not exhaustive of potential common law constitutionalist rule of law values that could apply in the public policy context. 2 (1772), [1772] Lofft 1 (HL (Eng)) [Somerset]. 3 [1904] 1 KB 591 (KBD) [Kaufman]. 4 The Liverpool, Brazil, and River Plate Steam Navigation Co Ltd v Henry Benham and Others, also known as The ‘Halley’, [1868] LR 2 PC 193 (PC) [The ‘Halley’]. In The ‘Halley’, the Judicial Committee of the Privy Council sat in its admiralty capacity, as the case was an appeal from the Court of Admiralty. 5 Otto Kahn-Freund, ‘Reflections on Public Policy in the English Conflict of Laws’ (1953) 39 Transactions of the Grotius Society 39 at 40 [Kahn-Freund, ‘Reflections’]. Anthony Sebok calls it the ‘single most famous application of the public policy exception.’ Anthony J Sebok, ‘Legal Positivism and American Slave Law: The Case of Chief Justice Shaw’ in David Dyzenhaus, ed, Recrafting the Rule of Law (Oxford and Portland: Hart Publishing, 1999) 113 at 115. 6 Alex Mills, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4:2 J P Int’l L 201 at 220 [Mills, ‘Dimensions’]. Lynn Wardle refers to Somerset as the ‘first’ and the ‘oldest’ public policy case: Lynn D Wardle, ‘From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-jurisdictional Recognition of Controversial Domestic Relations’ (2008) [2008] BYUL Rev 1855 at 1868 [Wardle, ‘Slavery to Same-Sex Marriage’].

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going far enough to prohibit slavery in all circumstances,7 the case is widely thought to be a

leading example of when it is acceptable and appropriate to use the public policy exception to

refuse to apply foreign law.8

By contrast, while Kaufman v Gerson (decided by the English Court of Appeal in 1904)

is also one of the ‘best known’ public policy cases,9 it is frequently cited as an example of

where the public policy exception was wrongly invoked!10 The case, in which the public policy

exception was used to refuse to apply French law that would have enforced a contract entered

into under duress, has been roundly criticized by scholars from Dicey onwards.11 Scholars have

argued that the failure of French law to recognize that duress vitiates consent is a rather trivial

normative ground on which to refuse to apply foreign law. This seems especially true when

compared with Somerset, where foreign law that allowed a person to be purchased as property

and sold into slavery was clearly morally objectionable.12

Finally, The Halley (a Privy Council case from 1868) is also a well-known public

policy case, considered by scholars such as Otto Kahn-Freund and Moffatt Hancock in their

analysis of the exception.13 However, the case is best-known for its association with the so-

7 See infra notes 93-97 and accompanying text (describing critiques of Lord Mansfield’s reasons in Somerset). 8 For example, Mills takes Somerset to be a clear and obvious example of a case where an absolute moral principle was rightfully enforced as a matter of public policy. Mills, ‘Dimensions,’ supra note 6 at 220. 9 Kaufman is frequently included in case books as an important example of the use of public policy. See e.g. CMV Clarkson & Jonathan Hill, The Conflict of Laws, 3d ed (Oxford: Oxford University Press, 2006) at 202 (calling Kaufman the ‘best known case where public policy was used to protect ‘English ideas of justice or morality’) [Clarkson & Hill, Conflict of Laws]; Sir Lawrence Collins, Dicey, Morris and Collins on The Conflict of Laws, 14th ed (London: Sweet & Maxwell, 2006) vol 2 at 1628-1629 [Collins, Conflict of Laws]. 10 For example, see PP North & JJ Fawcett, Cheshire and North: Private International Law, 11th ed (London: Butterworths, 1987) at 132 (calling Kaufman a ‘striking example of insularity,’ where public policy was wrongly used to support a parochial English principle) [North & Fawcett, Cheshire and North, 11th ed]. 11 See infra notes 127-130 and accompanying text. 12 See infra note 128 and accompanying text, describing Dicey’s critique of Kaufman. 13 Kahn-Freund, ‘Reflections,’ supra note 5 at 49. Moffatt Hancock discussed The ‘Halley’ numerous times in his writing, including: Moffatt Hancock, ‘Canadian-American Torts in the Conflict of Laws: The Revival of Policy Determined Construction Analysis’ (1968) 46 Can Bar Rev 226; Moffatt Hancock, Torts in the Conflict of Laws (Chicago: Callaghan & Co, 1942) at 11; Moffatt Hancock, ‘Choice-of-Law Policies in Multiple Contact Cases’ (1943) 5 UTLJ 133 at 142.

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called ‘double actionability’ rule for choice of law in tort, a now-outdated principle whereby a

party could not bring a suit in England concerning a foreign tort unless the behaviour in

question was also tortious under the law of England.14 The Halley involved damage to a ship

in Belgium, where Belgian law permitted a tort suit that was not recognized in England. The

significance of the case for the public policy exception has been less emphasized in the

literature, even though the case was ultimately decided on public policy grounds.15

These three well-known English cases – the ‘most famous’ public policy case

(Somerset); a highly criticized public policy case (Kaufman v Gerson); and a case whose public

policy dimension has been eclipsed by its other choice of law implications (The Halley) –

appear to be entirely unrelated to one another. They are thought to stand for three very different

principles: the incompatibility of slavery with the common law (Somerset’s case); the refusal

to enforce a foreign contract entered into under duress (Kaufman v Gerson); and the creation

of the double actionability doctrine (The Halley). Neither the facts on which these cases were

decided nor the reasons for invoking public policy appear to be connected to one another.

Indeed, these cases appear to exemplify the type of hodge-podge of rationales for using

the public policy exception that supposedly leaves the exception unable to be captured by a

coherent account or theory.16 There appears to be no principle that unifies these uses of the

public policy exception; rather they seem motivated by a grab-bag of reasons that typifies the

uncertainty the public policy exception has been thought to introduce into choice of law rules.

14 For an important judicial discussion of how The ‘Halley’ established this principle, along with Phillips v Eyre, see Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19, [2002] 2 WLR 1353 (HL (Eng)) at para 182ff [Kuwait Airways]. I provide an in-depth analysis of Kuwait Airways in Chapter 5 below. 15 While most scholars focus on the double actionability implications of the case, a notable exception is Moffatt Hancock, who in his writings is sensitive to both the tort law and the public policy implications of the case: see supra note 13. 16 For a discussion of how the exception is typically understood by scholars, see supra Chapter 1.

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In this chapter, however, I will argue that these three canonical cases are in fact deeply

connected: each case is an example of a common law court refusing to apply a foreign law

when its content violates the rule of law. More specifically, in each of these three cases, public

policy is invoked on the basis of one of the three principles derived from the liberty dimension

of the common law constitutionalist account of the rule of law: Somerset’s case is an example

of the sui juris principle being invoked to refuse to apply foreign law that would deny each

person’s right to be her own master; Kaufman v Gerson is an example of the consent principle

being invoked to refuse to apply foreign law that alters a person’s rights vis-à-vis another

private person without her consent; and The Halley is an example of the responsibility

principle operating to refuse to apply foreign law that establishes liability for acts for which

the defendant is not responsible. Each case is an important example of the liberty dimension

of the common law constitutionalist account of the rule of law at work, whereby foreign law

that does not meet the minimal normative requirements of the common law constitution cannot

be applied by a common law court.

Moreover, as I argue, this fundamental connection between the liberty dimension of

the common law constitutionalist account and the use of the public policy exception in practice

is not limited to these three canonical cases. Rather, we can see these principles at work in a

number of other public policy cases in the English and Canadian jurisprudence, including some

well-known public policy cases which have been subject to extensive scholarly analysis, and

others which are virtually unknown.

Ultimately, this chapter will start to make the case that we can observe a strong

connection between the common law constitutionalist account of the rule of law and the use

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of the public policy exception in practice.17 There is an important (and as yet-unnoticed) strand

of cases in which the liberty dimension of the common law constitutionalist account of the rule

of law has been used to refuse application to foreign law that violates either the sui juris

principle, the consent principle, or the responsibility principle.

This chapter builds on the work of other scholars, who have observed that there is a

connection between some uses of the public policy exception and fundamental liberty rights

in the common law tradition. North and Fawcett, for example, note that the public policy

exception has sometimes been invoked ‘[w]here a foreign law or status offends the English

conceptions of human liberty and freedom of action.’18 Similarly, Michael Mann has identified

lack of consent as a possible ground for refusing to apply foreign law on the basis of public

policy.19 My analysis builds on these suggestions, systematically connecting the public policy

case law to liberty principles of the common law constitution, and offering a rationale for why

there is a connection between these principles and the use of the public policy exception to

refuse to apply foreign law.

My analysis in this chapter will proceed as follows. In Part I, I discuss Somerset’s case,

and argue that it is an important example of the sui juris principle at work. I also discuss how

this principle is at play elsewhere in the application of the public policy exception, including

in an important but overlooked Canadian case called Archer v Society of the Sacred Heart of

Jesus. In Part II, I consider Kaufman v Gerson and the consent principle. I argue that the

standard critique of Kaufman v Gerson is misplaced, and that the case can be understood as an

17 I will continue to develop this argument in the following three chapters. 18 PM North & JJ Fawcett, Cheshire and North: Private International Law, 12th ed (London: Butterworths, 1992) at 132 [North & Fawcett, Cheshire and North, 12th ed]. 19 Michael Mann, ‘Lack of Consent as a Ground for Nullity and the Conflict of Laws’ (1954) 8 ICLQ 454 [Mann, ‘Lack of Consent’].

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important example of the consent principle at work. I also point to a long line of other cases in

which foreign law that violates the consent principle was found to violate public policy. In Part

III, I discuss The Halley and the responsibility principle. The Halley is normally associated

with the double-actionability doctrine. However, I argue, the case is best understood as an

example of foreign law violating public policy because it assigns legal liability to an actor who

was not responsible for the tortious conduct at issue, violating the fundamental commitment

to respecting individual agency in the common law. We also see this principle at work in a

Canadian case, Branco v American Home Assurance Co, among other cases. Finally, I

conclude by discussing some important implications of my analysis for the public policy

exception in particular and private international law more generally.

Part I: Somerset’s Case and the Sui Juris Requirement

In this part, I begin to investigate whether my rule of law account of the public policy

exception accurately captures the way the exception is used in practice. Our starting point is a

leading public policy case, which is also one of the most important cases in the history of the

common law, Somerset v Stewart. Somerset was decided in 1772 by the King’s Bench, the

highest court in England at the time. The judgment, written by Lord Mansfield for a unanimous

court,20 is famous for its role in the eventual abolition of slavery.21 But it is also a celebrated

20 Mansfield sat with three puisne justices – Richard Aston, Edward Willes, and William Henry Ashurst. But they said little at oral argument and Mansfield wrote the judgment. Steven M Wise, Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery (Cambridge, MA: DaCapo Press, 2005) [Wise, Heavens May Fall]. 21 See e.g. Wise, ibid (analyzing at length Somerset’s role in the abolition of slavery); Jenny S Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford: Oxford University Press, 2015) ch 2 [Martinez, The Slave Trade]; William R Cotter, ‘The Somerset Case and the Abolition of Slavery in England’ (1994) 79 History 31 [Cotter, ‘The Somerset Case’]. Of course, Somerset’s case did not immediately abolish either legal or illegal slavery: as discussed below, it took years before the UK parliament passed legislation abolishing slavery domestically and throughout the British Empire. In addition, as contemporary human rights groups and NGOs remind us, even if slavery is de jure prohibited, there are still many forms of modern slavery that persist to this day. See e.g. Anti-Slavery, ‘Slavery in the UK,’ online: Anti-Slavery <https://www.antislavery.org/slavery-today/slavery-uk/>. Yet Somerset remains an important turning point in the legal status of slavery.

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example of the use of the public policy exception to refuse to apply foreign law that violates

the forum’s fundamental values – in this case, a foreign law permitting chattel slavery.22

A. Somerset’s Case: ‘Let Justice be Done Though the Heavens Fall’

The story of Somerset’s case begins on March 10, 1749, when an eight year old boy

was kidnapped on the western coast of Africa23 and then transported via slave ship to

Virginia.24 The boy survived the notorious horrors of the Middle Passage, and was sold into

slavery on August 1, 1749. He was bought by Charles Stewart,25 a Scottish merchant and slave

trader, and (later) a high-ranking British customs officer.26 Stewart named the boy

‘Somerset,’27 and for the next twenty years, Somerset was enslaved by Stewart.28

In 1769, Stewart sailed to London for business, bringing Somerset with him.29 They

lived in London for two years, during which time Somerset – now in his early thirties – was

22 See e.g. National Surety v Larsen, [1929] 4 DLR 918 at para 28 (BCCA), calling Somerset a ‘celebrated’ case in the context of a discussion of the meaning of public policy [National Surety]. For a discussion of Somerset’s case in the context of the development of public policy, see Wardle, ‘Slavery to Same-Sex Marriage,’ supra note 6. 23 Wise, Heavens May Fall, supra note 20 at 1. 24 As Wiener discusses, there is evidence that Somerset may have arrived in Virginia via Jamaica: Mark S Weiner, ‘New Biographical Evidence on Somerset’s Case’ (2002) 23:1 Slavery and Abolition 121 at 122 and n 10 [Weiner, ‘New Biographical Evidence’]. 25 Stewart (as he is referred to in Somerset) was actually named ‘Steuart,’ but I will follow the way his name was spelled in Lord Mansfield’s judgment. See Weiner, ibid; Wise, Heavens May Fall, supra note 20. 26 Stewart became a customs officer in 1765: Weiner, ibid at 128. 27 However, as Wise details, Somerset may have acquired his name during the Middle Passage. Wise, Heavens May Fall, supra note 20 at 2. We also do not know precisely how Somerset’s name was spelled – it could have been Sommersett, Sommerset, Somersett, Summersett, or Sumerset: Fólarin Olawale Shyllon, Black Slaves in Britain (Oxford: Oxford University Press, 1974) at 77. 28 Somerset became Stewart’s ‘intimate’ and ‘trusted manservant,’ travelling frequently with Stewart to assist him with his business throughout the American colonies. While there is no evidence that Stewart abused Somerset, there is of course no evidence that Somerset was paid or that he had any choice in the matter. Wise, Heavens May Fall, supra note 20 at 2-4. 29 Lord Mansfield’s judgment describes the journey as one motivated by business (Somerset, supra note 2), but Wise describes the journey as undertaken for a period of rest in England, ‘to recuperate from the toll the arduous colonial traveling had taken on [Stewart’s] health’ (Wise, Heavens May Fall, supra note 20 at 5). Stewart intended to return to the American colonies after a period in England. Cotter, ‘The Somerset Case,’ supra note 21 at 34.

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baptized and acquired godparents.30 But Somerset continued to be enslaved by Stewart.31 This

was not unusual in England at the time, where there lived an estimated 15 000 slaves,32

primarily owned by merchants who had returned from the colonies.33 This was possible

because the legal status of slavery in England was ambiguous. While Blackstone’s treatise on

the common law of England denied that slavery was legally permissible,34 and while there was

some legal precedent suggesting that slavery was illegal in England,35 the issue of the legality

of slavery in England had not yet been directly put to the courts.36 Thus slaves were

commonplace in eighteenth century England, although a foment of abolitionist activity sought

to change that reality.37

30 Somerset’s decision to be baptized also likely had a legal motivation. As Wise explains, there was a belief at the time (rooted in the Yorke-Talbot opinion) that baptism into Christianity was sufficient to set a slave free, even though this had never been borne out by the courts. Wise, Heavens May Fall, supra note 20 at 25-27. It is at this time that Somerset likely adopted the given name of ‘James.’ Weiner, ‘New Biographical Evidence,’ supra note 24 at 122. 31 This entailed doing Stewart’s bidding, in the same way Somerset had done in the US. Wise, Heavens May Fall, supra note 20 at 6. 32 Somerset, supra note 2 at 17. 33 During this period, Great Britain was at the heart of the slave trade. It is ironic, then, that England would also be a key site in the abolitionist movement and would become the primary agitator for the development of international treaties and customary international law which made slavery illegal. See Martinez, The Slave Trade, supra note 21, ch 2 (describing Britain’s role in the slave trade and in the abolitionist movement). 34 In the first edition of his Commentaries on the Laws of England, Blackstone writes:

[P]ure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. The three origins of the right of slavery assigned by Justinian, are all of them built upon false foundation.

Sir William Blackstone, Commentaries on the Law of England, 1st ed, vol 1 (Oxford: Clarendon Press, 1765) at 411 [Blackstone, Commentaries]. Blackstone also argued that a slave was free the moment he set foot in England, because the ‘spirit of liberty is so deeply implanted in our constitution, and rooted in our very soil, that a slave or a Negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes so eo instanti a free man.’ Ibid at 123. However, as Wise details, Blackstone softened this stance on this issue in subsequent editions of the Commentaries, arguing that perhaps a contract for slavery could continue after a slave was brought to England. Wise, Heavens May Fall, supra note 20 at 38-39. 35 For discussion of prior jurisprudence see Wise, Heavens May Fall, supra note 20, chs 11, 12, 18 (discussing certain anti-slavery precedents such as Cartwright’s case (1569); Chamberlain v Harvey (1687); Smith v Brown and Cooper (1701); Smith v Gould (1706); Shanley v Harvey (1763)). See also Wise’s discussion of more ambiguous or negative cases such as Butts v Penny (1677) and Pearne v Lisle (1749). 36 Or perhaps the public was not aware of the jurisprudence. 37 For a fascinating discussion of the history of the anti-slavery movement in England that precipitated the development of Somerset’s case, which was intended to test the status of slavery in England, see William M Wiecek, ‘Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World’ (1974) 42:1 U Chicago

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In October of 1771, Somerset fled Stewart’s household in an attempt to escape his

enslavement. Stewart, angered and betrayed by Somerset’s flight, sent slave catchers to find

him.38 When the slave catchers eventually found Somerset, on Stewart’s orders they bound

and detained Somerset on a ship anchored in the Thames. The ship was destined for Jamaica,

where Somerset was to be sold on the slave market.39

But before the ship could depart, Somerset’s three godparents filed a habeas corpus

petition with Lord Mansfield challenging Somerset’s detention.40 Mansfield, the Chief Justice

of the King’s Bench, granted the writ, forcing the captain of the ship on which Somerset was

detained to set him free pending determination of the legality of Somerset’s detention.41

Mansfield referred the matter to the King’s Bench to determine whether Stewart had the legal

right to detain and deport Somerset. Although Mansfield tried to get the parties to settle out of

court,42 the parties would not be deterred, and the case proceeded to judgment. This placed the

issue of whether one could claim a legal right to own a slave in England directly before the

court, for Stewart could only claim to have a right to imprison and forcibly remove Somerset

from England if he owned him.

L Rev 86 [Wiecek, ‘Lord Mansfield’]. See also Stephen Usherwood, ‘The Black Must Be Discharged – The Abolitionists’ Debt to Lord Mansfield’ (1981) 31:3 History Today. 38 Wise, Heavens May Fall, supra note 20 at 6, 8. 39 We now know this to have been a likely death sentence, given the extraordinarily harsh treatment of slaves in the West Indies at the time. Wise, ibid at 10. 40 Wise, ibid. While habeas petitions are often associated with actions against public authorities for wrongful imprisonment, it has also been used in England since the eighteenth century in the context of detention by private parties. Somerset’s godparents may have been assisted in filing the writ by Granville Sharp, a leading abolitionist, who sought to use Somerset’s case to further the abolitionist cause. Sharp arranged for several barristers to represent Somerset pro bono. On the other side, Stewart’s legal costs were ultimately covered by West Indies planters and merchants, who sought to preserve the legality of chattel slavery. Wise, ibid at 155. 41 Although note that Mansfield did not release Somerset on his own recognizance – Mansfield demanded that sureties be paid in order for Somerset to be released. Wise, ibid. 42 Somerset, supra note 2 at 17.

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The core legal issue in Somerset was a choice of law problem:43 Which state’s law

should apply to determine whether Stewart had a property right to Somerset? The normal

choice of law rule for determining the law that applies to the transfer of property rights to

chattel is to apply the law of the place of the transfer.44 Stewart’s lawyers argued that because

Stewart had acquired a property right to own Somerset in Virginia, where chattel slavery was

legal, that right should be recognized everywhere, including in England. Thus Virginia law

should apply in this instance, and Stewart’s right to own Somerset (and therefore to control his

movements) should be recognized in England.

Somerset’s counsel, however, argued that the law of the place where the property was

acquired should only be applied when ‘no very great inconvenience would follow; but

otherwise not.’45 That is, they argued that there is an exception to the normal territorial choice

of law rules, which would allow the court to disregard Virginia law. The phrase ‘public policy’

was not yet in use,46 and so they did not put the point in those terms; however, Somerset’s

counsel argued that Virginia law should not be applied because of a moral problem with the

law – and thus we can understand their argument as a public policy claim.47

43 Robert Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975) at 87 (framing the issue as a choice of law matter) [Cover, Justice Accused]; George Van Cleve, ‘“Somerset’s Case” and Its Antecedents in Imperial Perspective’ (2006) 24:3 Law and History Review 601 (describing the case as an ‘imperial conflict of laws’ case) [Van Cleve, ‘Somerset’s Case’]; Daniel J Hulsebosch, ‘Nothing but Liberty: “Somerset’s Case” and the British Empire’ (2006) 24:3 Law and History Review 647 (accepting the choice of law aspect of Van Cleve’s characterization of the case); Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, NC: University of North Carolina Press, 1981) at 16 (considering Somerset in the context of conflict of laws jurisprudence on slavery). 44 Somerset’s counsel contrasted the local law where the transaction took place (in this case, the transfer of the alleged chattel – Somerset) with the law of the forum. Somerset, supra note 2 at 4. 45 Ibid. 46 For a brief history of the use of the public policy exception, see Arthur Nussbaum, Principles of Private International Law (New York: Oxford University Press, 1943) at 111-112. 47 As Cover argues, this is the appropriate way to interpret the question Mansfield faced, since the challenge put to him was whether to recognize the extraterritorial effect of the right allegedly created in Virginia or whether English law would not permit such a right to be recognized on English soil. Cover, Justice Accused, supra note 43 at 87.

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The question facing Lord Mansfield, then, was whether to apply Virginia law granting

Stewart the right to own Somerset, or whether applying such a law would violate English

public policy. Lord Mansfield concluded that the law would not permit Somerset to be returned

to Stewart’s authority. In the most widely reported version of his judgment,48 Mansfield held:

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory; it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.49

Mansfield’s remarks clearly state that there is a significant problem with foreign law permitting

slavery – it is odious and unsupported by reason. But his reasons (quoted here in their entirety)

do not tell us precisely what is wrong with slavery, or why Mansfield was convinced that

Stewart’s alleged property right to Somerset could not be recognized in England.

The problematic nature of slavery may be obvious to today’s reader, given the

overwhelming modern consensus that slavery is both morally wrong and legally

impermissible, but this view was not well-established in 1772. Slavery was widely practiced

and highly profitable in the Atlantic world throughout the eighteenth century, and British

merchants were among the most active slave traders during this period.50 Mansfield was aware

of the economic importance of the slave trade, including the loss that would befall the owners

of slaves in the England if he were to render their ‘property’ illegal. He was deeply concerned

48 As Cotter outlines, there are several reported versions of the Somerset judgment, and there is an extensive scholarly debate as to which version is most authentic. Cotter, ‘The Somerset Case,’ supra note 21 at 33-34. However, the Lofft version on which I am relying here is the most widely accepted. Ibid. See also Wise, Heavens May Fall, supra note 20 at 180-184, ch 17. Mansfield’s notes on his judgment are not available because his house in London was burned to the ground (along with all his papers) by anti-Catholic rioters in 1780. Ibid at 180-181. 49 Somerset, supra note 2 at 19. 50 Martinez, The Slave Trade, supra note 21 at 18. During this period British merchants traded more slaves than any other country except Portugal. Ibid.

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with the possible consequences of ruling in the case – he encouraged the parties to reach a

settlement, and only proceeded to judgment because the parties demanded it.51 But Mansfield

clearly felt compelled to rule for Somerset despite the consequences that could follow; before

reserving the case for consideration,52 he invoked the Latin maxim fiat justitia, ruat caelum –

‘let justice be done though the heavens fall.’53 But what were those reasons of justice that

meant that Virginia law violated public policy?

B. The Sui Juris Principle at Work

Given the paucity of reasons in Mansfield’s judgment, it is helpful to turn to the

arguments that were made by counsel.54 Mansfield expresses deference to the lawyers in the

case (he notes before giving judgment that ‘I do not imagine, after the point has been discussed

on both sides so extremely well, any new light could be thrown on the subject’),55 and in light

of his decision to side with Somerset’s counsel, he must have found their arguments

persuasive. Thus, it is worth examining the reasons they provided for invoking public policy.

The most important arguments in Somerset were made by two young barristers, Francis

Hargrave and John Alleyne.56 Hargrave began by defining slavery and detailing the

51 Mansfield writes: ‘The question is, if the owner had a right to detain the slave, for the sending of him over to be sold in Jamaica. In five or six cases of this nature, I have known it to be accommodated by agreement between the parties: on its first coming before me, I strongly recommended it here. But if the parties will have it decided, we must give our opinion.’ Somerset, supra note 2 at 17. 52 Mansfield took the unusual step of reserving judgment in Somerset’s case for several weeks after the final hearing, instead of announcing his judgment orally at the hearing. Wise, Heavens May Fall, supra note 20 at 170. 53 This is how Wise translates this Latin phrase. Ibid. However, the translation in the Lofft version of the judgment is slightly different: ‘let justice be done whatever be the consequence.’ Somerset, supra note 2 at 17. 54 I rely on the arguments that are captured in the Lofft version of the case. While others have tried to reconstruct the arguments (see e.g. Wise, Heavens May Fall, supra note 20, chs 11-17; Hargrave’s own later-published version of his argument (Francis Hargrave, ‘An argument in the case of James Sommersett a Negro: lately determined by the Court of King’s Bench: wherein it is attempted to demonstrate the present unlawfulness of domestic slavery in England’ (1772) British Trials 3)) the Lofft version is what holds precedential value. Since my interest is in the legal reasons adopted and subsequently used, this choice seems legitimate. 55 Somerset, supra note 2 at 18. 56 Hargrave and Alleyne were making the first oral arguments of their careers. Somerset was represented by five attorneys of ‘eminent legal talent.’ Wiecek, ‘Lord Mansfield,’ supra note 37 at 102. This included three experienced barristers – James Mansfield (no relation to Lord Mansfield), Serjeant-at-law William Davy, and Serjeant-at-law John Glynn – and two less experienced barristers, Hargrave and Alleyne. (Alleyne had only been

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extraordinarily debased status of the slave, who is entirely subject to the arbitrary power of the

master.57 The master can inflict any treatment or punishment on the slave that he wishes. He

can sell the slave to another on the basis of any ‘caprice or malice.’58 This type of legal

institution, Hargrave argues, is incompatible with the English constitution.59 The constitution

does not accept the exercise of this sort of arbitrary power (‘our mild and just constitution is

ill adapted to the reception of arbitrary maxims and practices’) and thus slavery is forbidden

by the ‘genius and spirit of the constitution.’60 This constitutional prohibition on arbitrary

power means that slavery cannot be recognized in a country ‘whose air is deemed too pure for

slaves to breathe in it.’61

Hargrave also argues that ‘freedom is the grand object of the laws’ in England.62 One

cannot, for example, contract oneself into slavery; the law ‘will not suffer him to invest another

man with despotism, nor prevent his own right to dispose of property.’63 The purpose of

English law is to secure the freedom of persons, and all people in England have a ‘right to [the

law’s] protection’ of core freedoms. These rights are inalienable, even through a freely chosen

act, much less when these rights are given up without consent, as in Somerset’s case.64 Thus,

called to the bar on the Thursday before the case was heard!). The case would make Hargrave and Alleyne’s careers. 57 The slave is at the master’s ‘arbitrary disposal.’ Somerset, supra note 2 at 3. 58 Ibid at 2. 59 As Wise argues, this followed Blackstone. See Wise, Heavens May Fall, supra note 20 at 38. See also supra note 34 (discussing Blackstone). 60 Somerset, supra note 2 at 2. 61 This is the most famous line in the judgment, which is sometimes wrongly attributed to Mansfield himself. Ibid. See Daniel J Hulsebosch, ‘Somserset’s Case at the Bar: Securing the “Pure Air” of English Jurisdiction within the British Empire’ 13 Tex Wesleyan L Rev 699 [Hulsebosch, ‘Pure Air’]. 62 Somerset, supra note 2 at 5. 63 Ibid at 3. 64 Ibid (‘If disallowed by consent of parties, much more when by force; if made void when commenced here’).

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Hargrave concludes, slavery is ‘opposite to natural justice’ and ‘[inconsistent] with the laws

of England.’65

After Hargrave, an even more junior barrister named John Alleyne (called to the bar

mere days before the Somerset hearing!) added to the team’s philosophical arguments.66

Alleyne argued that slavery was a condition to which consent through law was impossible,

because it negates the very possibility of private law relationships by annihilating the slave’s

legal subjecthood. ‘[I]n all contracts there must be power on one side to give, on the other to

receive; and a competent consideration.’67 But if one attempts to contract oneself into slavery,

one negates one’s status as an equal party to the transaction, divesting oneself of legal

subjecthood, which Alleyne argues is impossible:

[W]hat power can there be in any man to dispose of all the rights vested by nature and society in him and his descendants? He cannot consent to part with them, without ceasing to be a man; for they immediately flow from, and are essential to, his condition as such: they cannot be taken from him, for they are not his, as a citizen or a member of society merely; and are not to be resigned to a power inferior to that which gave them.68

The law cannot countenance the legal relation of one person owning another, because it entails

a logical contradiction; to be in a legal relationship, one must be a person, and being a person

means not being entirely subject to the will of another. This protection of fundamental liberty

is a core aspect of English law, Alleyne observed, and we must ‘guard and preserve that liberty

by which we are distinguished by all on earth!’69

65 Hargrave also made a number of other arguments. He reviewed the views of various philosophers on the subject of slavery, including Grotius, Pufendorf, Montesquieu, and Locke, arguing that their views would not support slavery in this context. He also summarized the English case law and practice on point, arguing that any form of slavery in England has been long since abolished, and discussed the practice of other jurisdictions in prohibiting slavery. Ibid at 1-6. 66 Alleyne drew from Montesquieu to reject the Grotian position in favour of slavery. Ibid at 6. 67 Ibid. 68 Ibid. 69 Ibid at 7.

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The other recorded arguments on Somerset’s behalf were made by Serjeant William

‘Bull’ Davy.70 Davy put the public policy point in natural law terms, and framed Somerset as

a case that implicated ‘the honour of England, the honour of the laws of every Englishman,

here or abroad.’71 Allowing a foreign law permitting slavery to be applied in England would

call into question the righteousness of English law, because the positive law applied in

England, Davy argued, cannot violate natural law. Laws must cohere with a ‘moral’ standard,

‘which no laws can supercede.’72

In my view, the arguments given by Hargrave, Alleyne, and Davy, and adopted

implicitly by Mansfield in his judgment,73 invoke the sui juris principle to justify refusing to

apply Virginia law. As I argued in Chapter 2, the sui juris requirement is a core principle of

the common law constitutionalist account of the rule of law. Drawing from republican political

theory, the common law constitutionalists argue that the rule of law must ensure that

individuals are not subject to the arbitrary power of others, including other private persons.

This means that the rule of law must protect the independence of persons from the choices of

others – each person must have the right to decide how her life should go, free from the

arbitrary power of another to interfere with those choices as a matter of right. The right to be

free from the choices of others means that each person must be sui juris, or ‘her own master,’

70 As Wise describes, Davy was a more experienced barrister, and was no stranger to Mansfield, appearing before him many times in his career. Wise, Heavens May Fall, supra note 20 at 116-117. 71 Somerset, supra note 2 at 15. 72 Ibid. 73 Again, Mansfield himself did not give a detailed explanation for why he sided with Somerset’s counsel, and thus we are left to explore their arguments to determine the logic of the case. However, some have suggested that perhaps Mansfield was sympathetic to Somerset’s cause for reasons other than those before him in Somerset: As Wise describes, Mansfield’s niece Dido Elizabeth Belle was the daughter of an enslaved woman in the British West Indies; Mansfield was close to Belle (as she was known) and is thought to have been influenced by her in his judgments regarding slavery. Wise, Heavens May Fall, supra note 20 at 78-9, 183-4. For a recent fictionalized account of the relationship between Belle and Lord Mansfield and her supposed influence on his jurisprudence, see the 2013 film Belle.

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free to decide how to use her powers and how to exercise her independence. This also implies

that each person must be treated by the law as a legal subject – as someone capable of

possessing legal rights and having legal obligations, without someone else having the right to

exercise and determine those rights and obligations on that person’s behalf.

If the rule of law is to protect the sui juris requirement, it must prohibit legal

arrangements that allow one person to be subject to the arbitrary power of another. As I also

argued in Chapter 2, the most obvious example of a legal arrangement that violates the sui juris

principle is slavery74 – indeed, the legality problems that arise from a system of

institutionalized slavery are a reoccurring motif in the writings of common law

constitutionalists.75 According to scholars such as TRS Allan and David Dyzenhaus, slavery

is a core example of an institution that is incompatible with the rule of law in a common law

system.76 Slavery violates ‘the moral value of the rule of law,’77 because it allows one person,

74 Note, though, that there is a range of different legal arrangements that fall under the idea of slavery. Obviously chattel slavery (esclavage merchandise), in which the slave is considered to be an object capable of being owned, is the paradigmatic case of the denial of legal personality and the right to be sui juris. See Keith Bradley, Cambridge World History of Slavery (Cambridge, UK: Cambridge University Press, 2013) at 1-2. But there are other types of slavery that could create the same sort of denial of self-mastery even if there is some legal recognition of personhood, such as forced labour; serfdom; indentured labour; sharecropping; debt bondage; wage slavery; human trafficking; forced sex work; and even forced marriage. Chattel slavery is meant to be taken as the paradigmatic case because it is a formal denial of personhood, but surely there are other forms of slavery which would also constitute such a denial. 75 It also features in other important writing on the rule of law. See e.g. Cover, Justice Accused, supra note 43; Evan Fox-Decent, ‘Is the Rule of Law Really Indifferent to Human Rights?’ (2008) 27 Law & Phil 533; Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford: Hart Publishing, 2012); Kristen Rundle, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 UTLJ 65. There is also a long standing connection between republican theory and a critique of slavery. See e.g. Mary Nyquist, Arbitrary Rule: Slavery, Tyranny, and the Power of Life and Death (Chicago: University of Chicago Press, 2013). 76 See e.g. TRS Allan, ‘The Rule of Law’ in David Dyzenhaus & Malcolm Thorburn, eds, Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016) at 205-206; TRS Allan, ‘The Rule of Law as the Rule of Private Law’ in Lisa M Austin & Dennis Klimchuk, eds, Private Law and the Rule of Law (Oxford: Oxford University Press, 2014) 67 at 81 [Alan, ‘Rule of Law as Rule of Private Law’]; David Dyzenhaus, ‘The Legitimacy of the Rule of Law’ in David Dyzenhaus, Murray Hunt, & Grant Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford: Hart Publishing, 2009) 33 at 46 [Dyzenhaus, ‘Legitimacy of the Rule of Law’]. 77 ‘The moral value of the rule of law lies chiefly, then, in its capacity to safeguard liberty as independence. The free citizen may be contrasted with the slave along precisely these lines.’ Allan, ‘Rule of Law as Rule of Private Law,’ supra note 76 at 70.

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the master, to be in charge of another, the slave, entirely determining how the slave will use

her powers and for what ends. The slave is therefore subject to the arbitrary power of the

master, as a matter of right – and thus she is not sui juris. Such a relationship cannot be

compatible with the rule of law, when we understand the rule of law to protect the

independence of each person from the arbitrary choices of others.78

The arguments presented by Somerset’s lawyers conform to common law

constitutionalist reasoning about the rule of law in several ways. First, recall that Hargrave’s

primary argument was that slavery allows one person to be subject to the arbitrary power of

another in a way that cannot be countenanced by English law. This focus on the legally

impermissible nature of arbitrary power is precisely the common law constitutionalist’s

objection to slavery. Second, Alleyne tells us that what is specifically wrong with slavery is

that it negates the legal subjecthood of the slave. This too is an important aspect of the sui juris

principle as developed by the common law constitutionalists. Third, Hargrave frames the

problem with slavery in constitutional terms:79 he claims that the type of arbitrary power that

slavery permits one person to exercise over another is inconsistent with the ‘genius and spirit’

of the English constitution. This echoes the fundamental common law constitutionalist idea

that there are certain unwritten normative principles that constitute the common law

conception of legality.80 And finally, Davy’s view was that if foreign law is to be applied by

78 Thus, according to common law constitutionalists, slaves are ‘remove[d] from the protection of the rule of law’. For this reason, slavery is incompatible with legality. Dyzenhaus, ‘Legitimacy of the Rule of Law,’ supra note 76 at 46. 79 This approach follows Blackstone. Blackstone, Commentaries, supra note 34 at 123. See also Wise, Heavens May Fall, supra note 20 at 38. 80 The constitutional valence of Somerset has been frequently noted by scholars, who have argued that the case articulated a fundamental development in English constitutional law. See e.g. See AV Dicey, Introduction to the Study of the Law of the Constitution, reprint of 8th ed from 1915 (Indianapolis: Liberty Fund, 1982) at 133, using it as an example of the right to personal freedom that is enshrined in the English constitution. As Van Cleve argues, Somerset’s case ‘represented the clear emergence in English law of a new English idea of freedom. This new idea of freedom was that in England, core legal freedoms such as access to the courts and protection from

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an English court, it must conform with certain fundamental natural law principles, and since

slavery is inconsistent with those principles it should not be applied; this perspective fits well

with my rule of law-based approach to the public policy exception, which would place

normative limits on the content of any exercise of legal authority, whether rooted in domestic

or foreign law.

The arguments provided by Hargrave, Alleyne, and Davy are therefore fundamentally

connected to the legality concerns that common law constitutionalists have voiced with

slavery: it is an institution that subjects individuals to a type of arbitrary power that is

inconsistent with the constitution of England; and it establishes a legal status that is incoherent

because it constitutes a denial of individual legal subjecthood. Thus the reasons for Mansfield’s

invocation of public policy to reject foreign law in Somerset’s case seem to be fundamentally

connected to the common law constitutionalist concern that law must respect the freedom as

independence of persons. We can therefore understand Somerset’s case as a key example of a

public policy case in which a court refused to apply a foreign law because it violated the sui

juris principle.

C. Objections to this Reading of Somerset’s Case

After Somerset’s case was handed down, it achieved near-instant fame and influenced

the development of the law in England and the US.81 Given its historical importance,

arbitrary, unlimited physical abuse, were available to all subjects as “rights of man,” not dependent upon birth, race, religion, or free status, and could only be denied by statute or express, longstanding custom.’ Van Cleve, ‘Somerset’s Case,’ supra note 43 at 606. 81 It is thought to have led in part to the British Parliament’s legislation outlawing the slave trade (in 1807) and to making slavery illegal throughout the British Empire (in 1833) and was widely cited by British and American courts. See Wiecek, ‘Lord Mansfield,’ supra note 37. As Robert Cover describes, the case was so well-known that it was specifically overruled by the constitution of the Confederate States of America in 1861 (Cover, Justice Accused, supra note 43 at 88); and it was discussed and quoted at length in Justice McLean’s dissent in Dred Scott (Dred Scott v Sandford, 60 US 393 (1857)).

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Somerset’s case has been subject to extensive judicial and scholarly commentary. This

literature offers several possible objections to my reading of the case.

The first objection is that several private international law scholars have argued that

Mansfield rejected Virginian law on the basis of the ‘public law taboo’ and not on the basis of

public policy.82 The ‘public law taboo’ is the idea that, as a general matter in choice of law,

courts do not apply the public law of foreign states,83 including foreign criminal law.84 Some

scholars have suggested that since slavery ‘restrict[s] human freedom by penalizing certain

classes of the population to the profit of others’85 and ‘imposes a personal disqualification of

a penal nature,’86 it must be understood as a public, criminal law; and thus, pursuant to the

82 There are other conflicts scholars who argue slavery is prohibited as a matter of public policy for reasons that are framed slightly differently from those that I offer here, but those reasons do not conflict with my interpretation (and indeed they rather support my interpretation). For example, Savigny argues that ‘[s]lavery, as a legal institution, is foreign to our state, not recognised by it; and at the same time it is, from our point of view, totally immoral to treat man as a thing.’ Friedrich Carl von Savigny, Private International Law: A Treatise on the Conflict of Laws: And the Limits of Their Operation in Respect of Place and Time, trans by William Guthrie (Edinburgh & London: T & T Clark, 1869) at 80. In other words, slavery is a legal institution so far removed from the normal legal ordering of the state and from the moral norm that the law not treat people as things that it cannot be recognized as a matter of public policy. These reasons accord precisely with my sui juris approach, although they are not framed in those terms. (Savigny also later cites to the holding in Somerset without comment, but presumably he approves of the case given the reasons just discussed. Ibid at 85.) See also Mills, ‘Dimensions,’ supra note 6 at 220, stating that slavery is not recognized as a matter of public policy in Somerset because the practice is objectively wrong. Again this is not exactly the same reason that I give for why slavery is incompatible with public policy, but it does not contradict my account. 83 This is not to necessarily assume, however, that criminal law is inherently or fully ‘public’. For a discussion of the private law dimensions of criminal law, see e.g. Marcus D Dubber, ‘Paradigms of Criminal Law’ in Markus D Dubber & Tatjana Hörnle, eds, Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014) 1017. 84 Graveson places slavery within the public policy exception by thinking about it as a status with a penal or privative nature; its prohibition is rooted in the prohibition on applying foreign penal law. RH Graveson, Conflict of Laws: Private International Law, 5th ed (London: Sweet & Maxwell, 1965) at 579-580. 85 North & Fawcett, Cheshire and North, 12th ed, supra note 18 at 133 (describing slavery as a ‘disqualification’ that ‘restrict[s] human freedom by penalizing certain classes of the population to the profit of others,’ and thus such a legal relationship can only have an ‘intra-territorial effect’; and citing directly to Somerset as an example of this type of penal relationship). 86 GC Cheshire, Private International Law (Oxford: Clarendon Press, 1935) at 78. When discussing foreign acquired rights that are not recognized in England, Cheshire includes the category: ‘Where the foreign law imposes a personal disqualification of a penal nature.’ (Ibid.) He describes this category as follows: ‘The history of the world affords many examples of legal disabilities firmly established in some countries but unknown and even anathematized in others. Obvious examples are disqualifications arising from slavery’ (ibid at 78-9); and he cites directly to Somerset (ibid at 79).

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public law taboo, it cannot be applied outside of the territory of the state that enacted the law.87

On such a reading of the case, the reason the court in Somerset could not apply Virginia law is

because it could not recognize the penal status that it imposed. This interpretation of Somerset

is adopted by leading scholars such as Graveson, Cheshire, North and Fawcett, and Westlake,88

and is mentioned by Collins as the traditional interpretation of Somerset.89

But this traditional reading of the case is unpersuasive. This ‘penal law’ interpretation

is explicitly rejected by Mansfield in his questioning of Somerset’s counsel. During oral

argument, Somerset’s counsel mentioned a case in which criminals sentenced to be executed

in Spain escaped to France, where they were not prosecuted for the Spanish crime. But in

response, Mansfield interjected to observe that this was not analogous to the situation in

Somerset. While the French case involved the possible application of Spanish public (criminal)

law, Mansfield suggests that the same is not true of Somerset, where the law under

consideration was Virginia’s property law – not a penal or criminal law. Thus the interpretation

of Somerset as relying on the public law taboo does not fit well with the way Mansfield

understood the question in front of him.90

More importantly, the ‘penal law’ interpretation does not reflect the types of reasons

given for invoking public policy in Somerset. The arguments provided by Somerset’s counsel

87 These scholars do get something important right about the case. For these scholars, the problem with Virginia law is that it violates freedom and thus must be understood as punitive and inapplicable in England. This is different from my view, which accepts that there is a violation of liberty but does not rely on the premise that the law is punitive (in the sense of punishment-oriented) per se. Rather, it is the violation of liberty which makes it inapplicable in England. I do not think we need the penal premise to exclude the law in this instance. It can be purely private law that violates fundamental liberty and thus be excluded. 88 See supra notes 84-86 for discussion of Graveson, Cheshire, and North and Fawcett. Westlake adopts the penal law tact taken by these scholars. John Westlake, A Treatise on Private International Law or the Conflict of Laws (Philadelphia: T & JW Johnson & Co, 1859) at 238. See also the discussion in Chetti v Chetti of Westlake’s view to this effect: (1908), [1909] P 67 (Probate Divorce and Admiralty Division) at 83. 89 Collins, Conflict of Laws, supra note 9 at 96. 90 Collins agrees that this is an incorrect reading of Somerset. See Collins, ibid: ‘Although incapacities imposed for these reasons have traditionally been described as “penal” incapacities, the description is somewhat misleading in that they are not necessarily imposed for a breach of the criminal law, i.e. of a “penal law”.’

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did not suggest that the case turned on whether the status of slavery was in some way penal or

criminal.91 Rather, as outlined above, they focused on the problematic nature of slavery itself,

and the arbitrary power to which individuals would be subject if slavery were legally

permissible. The problem with Virginia law was that it violated liberty understood as

independence, not that it was in some way public or penal.92

A second possible objection to my reading of the case is that scholars have argued that

there are aspects of Mansfield’s statements in Somerset and his other writings and judgments

that narrow the holding in Somerset and call into question whether Mansfield was truly

motivated by the sui juris principle. Most notably, Mansfield observed during oral argument

in Somerset that a contract for a sale of slaves could be enforced in England.93 Mansfield’s

ruling in Somerset, scholars argue, must therefore be understood not to have made slavery

illegal in all its forms. Rather, the case can be read quite narrowly, to prohibit exercising

dominion over a person to remove them from a jurisdiction.94 If this narrow reading of the case

91 In addition, Stewart was not claiming to be acting in an official public capacity or to be entitled to punish Somerset. And there was no claim that Somerset was enslaved because he had done something wrong and was receiving some sort of public punishment. Rather, the claim was entirely private (in the sense that it dealt with the horizontal relationship between persons): Stewart was claiming to own Somerset as property. Somerset’s status was thus entirely unrelated to any punitive or public goal. 92 The source of this traditional understanding of the case may be Story and Dicey’s original commentary on Somerset. Story writes: ‘Personal disqualifications not arising from the law of nature, but from the principles of the customary or positive law of a foreign country, and especially such as are of a penal nature, are not generally regarded in other countries, where the like disqualifications do not exist. Hence, the disqualifications resulting from heresy, excommunication, Popish recusancy, infamy, and other penal disabilities, are not enforced in any other country, except that in which they originate. They are strictly territorial. So the state of slavery will not be recognised in any country, whose institutions and policy prohibit slavery.’ Joseph Story, Commentaries on the Conflict of Laws: Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments, 1st ed (Boston: Hilliard, Gray, 1834) at 104. Dicey also argues that the problem with recognizing foreign slavery is that it is a penal status: AV Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 2d ed (London: Stevens and Sons, 1908) at 36-37, 460-461 [Dicey]. 93 Somerset, supra note 2 at 17 (‘Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement’). 94 See Edward Fiddes, ‘Lord Mansfield and the Sommersett Case’ (1934) 50 Law Q Rev 499 at 506 (‘The case of Sommersett had gone no further than to determine that the master should not have the power to take his slave out of the Kingdom against his will’).

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is accepted, can the case really be seen to stand for the principle that foreign law that violates

the sui juris principle will not be applied in England?

Scholars have also questioned Mansfield’s psychological motivations in the case,

attacking ‘the myth of Mansfield the liberator.’95 As noted above, Mansfield took pains to

avoid deciding the issue of slavery’s legality in Somerset; and in his other writings and

judgments, he expressed a rather ambivalent attitude regarding the abolition of slavery.96 This

includes the infamous Zong massacre case, in which slaves were murdered by being thrown

overboard a slave ship on the grounds that lack of water meant that ‘jettisoning’ the ship’s

‘cargo’ was necessary. When Mansfield heard the case, he allowed an insurance claim for lost

human cargo to proceed to trial, accepting the law’s premise that jettisoning human ‘cargo’

could be lawful.97 Ultimately, Mansfield questioned whether it was actually necessary to have

killed the slaves and ordered a retrial. But he neither rejected the idea that jettisoning human

‘cargo’ could be lawful nor that one could bring an insurance claim for lost ‘property’ in the

form of human cargo. Scholars have argued that this and other judgments and writings mean

95 Hulsebosch, ‘Pure Air,’ supra note 61 at 702. Mansfield was careful not to adopt too broad a holding or to upset the validity of slavery everywhere and in all places; and in other writings, he did not state that slavery should be entirely abolished. Hulsebosch also argues that the case was motivated not by a concern for the inhumane aspects of slavery, but out of ‘hostility to unrestrained executive government. In those arguments and in the decision, the legal professionals were leveraging their constitutional identity as Englishmen against what they saw as the despotic legal cultures of the overseas royal territories.’ (Ibid at 709.) Hulsebosch urges us not to over-read the holding in Somerset’s case as connected to a fundamental concern for human rights.

Hulsebosch also urges us to understand Somerset in the context of what has been called the ‘imperial conflict of laws’ – the conflicts jurisprudence regulating the relationship between colonizer and colonies (or imperial power and empire). This context allows us to recognize that the case was less about human rights and more about the assertion of English supremacy over its empire. For more literature on the way in which the law has been used in the imperial context, see Lauren Benton & Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850 (Cambridge, MA: Harvard University Press, 2016); RW Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005) [Kostal, Jurisprudence of Power]. 96 Ibid. 97 For an extended account of the Zong case and its historical context, see James Walvin, The Zong: A Massacre, The Law, and the End of Slavery (New Haven: Yale University Press, 2011).

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that we should question Mansfield’s normative commitment to human rights and abolitionist

reform.

It is clear that Mansfield was not keen to decide the issue of slavery’s legality in

England, and that he was aware of the potential consequences of such a decision. He felt that

developments in the common law should be taken incrementally,98 and was well-known for

using narrow rulings to dismiss cases while leaving the underlying rule intact (as in Zong). But

these critiques of Mansfield do not fundamentally challenge my understanding of Somerset’s

case. The relationship of arbitrary power introduced by Virginia law was one that an English

court could not countenance, leading Mansfield to invoke public policy. Whether he would

have ruled the same way in other such public policy cases, or whether he was truly motivated

(as a psychological matter) by a concern for human rights is irrelevant. The reasons presented

to him by Somerset’s attorneys successfully identified a relationship that could not be cognized

by law; and Mansfield duly applied the law in refusing to recognize the legality of such a

relationship. Indeed, the holding in the case is all the more remarkable given Mansfield’s

evident reluctance and concern for prudence; thus, perhaps this potential objection shows even

more forcefully the strength of the public policy argument at the heart of the case.

Finally, a third possible objection to my account is that several public policy cases after

Somerset interpreted its holding narrowly, allowing certain types of rights to own slaves to be

recognized in England.99 Most notoriously, in Santos v Illidge, a case from 1859, an English

98 For a discussion of how Mansfield made incremental (yet important) changes to the common law in his jurisprudence, see Bernard L Shientag, ‘Lord Mansfield Revisited – A Modern Assessment’ (1941) 10:3 Fordham L Rev 345. 99 See also The Slave Grace (1827) 2 Haggard 94, 166 ER 179; Patricia Hagler Minter, ‘“The State of Slavery”: Somerset, The Slave Grace, and the Rise of Pro-Slavery and Anti-Slavery Constitutionalism in the Nineteenth-Century Atlantic World’ (2015) 36:4 Slavery & Abolition 603. And see Madrazo v Willes, (1820) 3 Barnewall and Alderson 353, 106 ER 692; Roussilon v Rousillon, (1880) 14 ChD 351; Santos v Illidge, (1860) 141 ER 1404 [Santos].

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court upheld a contract for a sale of slaves in Brazil under Brazilian law. Santos distinguished

Somerset on the basis of Mansfield’s comment in Somerset that he would have recognized a

contract for the sale of slaves in England.100

While it is troubling that certain judges in the years subsequent to Somerset were not

willing to refuse to recognize the legality of slavery in all its forms as a matter of public policy,

this objection is also not fatal to my reading of the case. It is, of course, to be expected that a

principle will be interpreted in different ways by different courts; the fact that a few courts

have gone different ways on an issue does not, in and of itself, negate my interpretation of

Somerset. And these cases were clearly in the minority. The broad interpretation of Somerset

that I have adopted was widely accepted by judges and scholars and incorporated into public

policy doctrine, which rapidly came to prohibit applying foreign law permitting slavery in any

form.101 As Wardle notes, ‘Somerset quickly came to stand for the notion that there was an

exception to the principle of inter-jurisdictional comity for slave status and incidents. Somerset

was immediately and immensely influential and had wide and enormous effects outside of the

courts.’102 The idea that slavery is a practice that is fundamentally at odds with legality is now

a widely accepted proposition; slavery is prohibited as a matter of jus cogens, and choice of

law rules routinely note that slavery and its incidents will not be recognized.103

D. Subsequent Interpretation of Somerset’s Case My claim that the court in Somerset refused to apply foreign law because it violated

the sui juris principle is also supported by the subsequent interpretation of the case in other

100 Santos, ibid. 101 For discussion on incorporation into the US jurisprudence, see Wiecek, ‘Lord Mansfield,’ supra note 37. 102 Wardle, ‘Slavery to Same-Sex Marriage,’ supra note 6 at 1876. 103 See infra Chapter 5 (for a discussion of the jus cogens prohibition on slavery).

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public policy cases.104 For a fascinating example, take Archer v Society of the Sacred Heart of

Jesus, a little-known Canadian case from 1905, decided by the Ontario Court of Appeal.105

Archer concerned a nun who had joined an order of the Catholic church in Missouri.

After serving the order for 17 years, the nun was transferred to a convent in Ontario, where

she had a mental breakdown and was institutionalized. After her release from a mental health

facility, she was removed from her Catholic order. She sued her Mother Superior and the

Catholic order in Ontario court for breach of contract and wrongful dismissal.

The nun argued that the agreement she made with the order when she joined the

convent in Missouri was an enforceable contract. When she became a nun, she undertook vows

of poverty, chastity, and obedience in exchange for room and board. She argued that these

vows were contractual in nature. On this theory, she argued that her removal from the order

constituted a breach of contract for which she was due compensation for wrongful dismissal

and unpaid wages. The nun’s suit raised a choice of law issue, because the choice of law rule

in contract was that a court would apply the law of the place of contracting – Missouri, in this

case.106

The Ontario court rejected the nun’s claim, and held that even if Missouri law would

construe her relationship with the religious order as a valid contract, it would violate Ontario

public policy to enforce it.107 The nun argued that the consideration for the contract was her

104 See e.g. Forbes v Cochrane (1824) (discussed in Cotter, ‘The Somerset Case,’ supra note 21 at 54). 105 Archer v Society of the Sacred Heart of Jesus (1905), [1905] OJ No 141, 9 OLR 474 (Ont CA) [Archer]. Archer is not well known in the canon of public policy cases. However, it has been considered in the literature on the relationship between law and the church. See e.g. Ian R Stauffe & Christian Bourbonnais Hyde, ‘The Sins of the Fathers: Vicarious Liability of Churches’ (1993) 25:3 Ottawa L Rev 561. It is also cited by Alan Brudner in The Unity of the Common Law in his discussion of contract law, as an example of the inalienability of personality. Alan Brudner, The Unity of the Common Law, 2d ed (Oxford: Oxford University Press, 2012) at 223 [Brudner, Unity of the Common Law]. 106 Archer, supra note 105 at para 67. 107 Ibid at para 74. This holding is consistent with the common law’s general treatment of religious obligations as fundamentally voluntary. See Peter JM MacFarlane & Simon Fisher, Churches, Clergy, and the Law (Leichhardt,

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vows of chastity,108 poverty, and obedience. But if these conditions were made enforceable,

the court concluded, this ‘total surrender of liberty’ would subject the obligor to what is

effectively slavery, because the obligor would be entirely subject to the arbitrary power of the

obligee.109

The court in Archer explicitly followed Somerset in reaching this conclusion.110 In his

judgment, Justice Garrow quoted the arguments made by the barristers in Somerset discussed

above regarding the idea that the law of England will not countenance an individual being

entirely subject to the arbitrary power of another through the denial of legal personality.111 In

endorsing this logic, Garrow explicitly uses the same theory as Somerset for refusing to apply

foreign law that would create a status akin to slavery:112 a legal arrangement in private law that

would subject one person to the arbitrary power of another, through denial of the legal

personality, rights, and duties of the subjected person, is not permissible in the common law.

In other words, the law applied by a common law court must comply with the sui juris

requirement.113

This analysis suggests that there is an important connection between the sui juris

requirement, as an aspect of the rule of law in the common law tradition, and reasons courts

NSW: The Federation Press, 1996) at 145-148. In addition, the contract was held to be invalid because it lacked consideration. Archer, supra note 105 at para 69. 108 The decision may have been influenced by normal domestic public policy against restraint of marriage. See Lowe v Peers (1768), 4 Burr 2225, 98 ER 160; Bradley v Bradley (1909), 19 OLR 525 (Div Ct). 109 Archer, supra note 105 at para 73. 110 Ibid at para 74. 111 Ibid. 112 For confirmation of this interpretation of Archer, see Brudner, Unity of the Common Law, supra note 105 at 223. 113 Interestingly, the holding in Archer was reached even though the court found no evidence that the nun had been abused or taken advantage of. (This is consistent with Somerset, where there was no evidence (save for forcible detention) of abuse of Somerset by Stewart.) The arbitrary power that the church held over the nun had not been used to exploit her; however, the form of a contract that would place one person under the control of another, denying her legal personality and capacity, even if that power is not abused in any particular way, is still incompatible with law.

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have relied on for invoking the public policy exception. A close examination of one of the

foundational cases in the public policy canon, Somerset’s case, reveals that the arguments

made to support invoking public policy mirror the common law constitutionalist’s sui juris

principle. Somerset’s case is therefore best read as an example of how common law

constitutionalist rule of law principles manifest in judicial reasons when analyzing whether

foreign law should be rejected on a public policy basis. This analysis also illuminates a seldom

observed connection between Somerset’s case and less well-known public policy cases where

foreign law has been refused application on the basis that it denies each person’s right to be

sui juris, as we saw in Archer. Ultimately, my proposed reading of these cases suggests that

there is a strand of public policy case law in which foreign law that violates the sui juris

requirement has been refused application in common law courts.

Part II: Kaufman v Gerson and the Consent Principle

The second leading public policy case I will examine, to see if we can observe a

connection between the use of the exception and the common law constitutionalist account of

the rule of law, is Kaufman v Gerson.114 A 1904 case from the English Court of Appeal,

Kaufman v Gerson is a well-known and frequently cited example of the use of public policy

to refuse application to foreign law in the context of choice of law.115 In particular, the case is

often cited for having articulated the public policy inquiry as one that examines whether the

foreign law ‘violates some moral principle, which, if it is not, ought to be universally

recognised.’116

114 Kaufman, supra note 3. 115 See e.g. Clarkson & Hill, Conflict of Laws, supra note 9 at 202 (calling Kaufman the ‘best known’ case where public policy is used when foreign law violates the forum’s conception of morality). 116 See e.g. Alex Mills, The Confluence of Public and Private International Law (Cambridge, UK: Cambridge University Press, 2009) at 278 [Mills, Confluence].

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But Kaufman is perhaps most famously viewed as a wrongheaded use of the exception,

where public policy was invoked on the basis of what commentators have considered a rather

trivial principle: that a contract entered into under duress cannot be valid. In essence, scholars

have cast it as a doctrinal outlier that needs to be explained away.

A. Kaufman v Gerson: Duress Vitiating Consent

The dispute in Kaufman v Gerson arose out of a loan between two private parties to

finance a business venture in France. Mr. Kaufman loaned money to Mr. Gerson to buy animal

hides that the pair intended to have ‘dressed’ (i.e. cleaned, tanned, and stretched, to be usable

as leather or fur) and then sold for a profit. Instead of using the money to buy the hides,

however, Mr. Gerson used the funds for his own purposes.

Kaufman could have informed the French authorities of Gerson’s theft.117 But instead,

he exercised self-help: he threatened Gerson’s wife, stating that unless she signed a contract in

which she agreed to repay the stolen funds from her own property,118 he would go to the police

to initiate criminal proceedings against Mr. Gerson – proceedings that the court found would

have ruined the reputation of the Gerson family, including their children. Faced with this threat,

Mrs. Gerson agreed to enter into a contract in France with Mr. Kaufman, pursuant to which

she would repay the funds stolen by her husband within three years. Ultimately, however, Mrs.

Gerson refused to abide by the contract, and Mr. Kaufman brought suit against her in England

to enforce the agreement.119

117 Alternatively, Kaufman could have sued Gerson in France. But as the court notes, Kaufman ‘was not content with such remedies as he might have by the French law under those circumstances, but desired to obtain some further advantage’. Kaufman, supra note 3 at 595-596 (quoting from the lower court’s judgment). 118 Since France did not have a community property regime under the Code Napoléon, she was not automatically liable for her husband’s debts. 119 It is unclear from the record why the case was brought in England.

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Normally, under English choice of law rules, the contract would be construed

according to the law of the place where it was made – France, in this case.120 And French law

would have upheld the contract, as there was no legal problem under French law with the threat

to Mrs. Gerson used to induce the agreement. But Mrs. Gerson’s counsel argued that it would

be contrary to English public policy to apply French law in this instance, because the contract

was entered into under duress.121 Contracts that are not made through a free exercise of agency,

Mrs. Gerson’s counsel argued, are ‘contrary to what the English law deems a general principle

of morality.’122 As such, the French law enforcing the contract violated English public policy.

In response, the barrister acting for Mr. Kaufman argued that there was no public policy

problem with French law in this instance, as the duress at issue was not sufficient to vitiate

Mrs. Gerson’s consent or to make it morally problematic for an English court to enforce the

contract.123

The Court of Appeal sided with Mrs. Gerson, holding that there was a fundamental

problem with the French law upholding a contract entered into in these circumstances. Mr.

Kaufman coerced Mrs. Gerson into signing the contract through a threat of criminal

prosecution against her husband and a loss of reputation for her family.124 The Court of Appeal

held that the ‘moral coercion’ at play was so grave that ‘pressure which amounted to torture

was applied in order to coerce the defendant into signing the contract.’125 Mr. Kaufman

120 Kaufman, supra note 3. 121 Mrs. Kaufman’s lawyers also argued that the contract should not be enforced because it was an agreement to stifle prosecution. Ibid at 594. However, the judges did not address this alternative claim. 122 Ibid at 593. 123 This was just a ‘very strong motive’ and not a physical threat. Ibid at 593. The lawyers argued that a contracting party ‘cannot be said not to be a free agent, merely because there is a very strong motive for entering into the contract … it is submitted that the contract was not in this case procured by any such duress or coercion as to render it contrary to morality or general principle that it should be enforced by an English Court.’ Ibid. 124 Ibid at 596: The plaintiff ‘forced the defendant to concede by the strongest possible moral pressure, namely, by the threat of bringing dishonour upon her name and that of her children.’ 125 Ibid at 600.

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‘extorted’ Mrs. Gerson into signing the contract. And according to fundamental principles of

English law, a contract entered into under such duress was not validly consented to, and thus

cannot be enforced. The fact that French law did not require genuine consent in the formation

of contracts meant that it ‘violates some moral principle, which, if it is not, ought to be

universally recognized.’126 The French law was therefore found to violate public policy, on the

basis of its failure to observe this fundamental consent requirement. Instead, the court resolved

the dispute on the basis of English law, and held that the contract was unenforceable.

The holding in Kaufman v Gerson has been subject to frequent scrutiny, from

authorities no less prominent than Dicey, Cheshire, and Kahn-Freund.127 The primary critique

has been that the moral principle at stake in Kaufman is insufficiently grave to justify the use

of public policy. Dicey argues that there is no ‘patent injustice’ evident on the facts. He

compares the moral principle at stake in Kaufman to the use of public policy in the context of

slavery in Somerset’s case, and concludes that the moral issue in Kaufman was not sufficiently

serious to warrant using public policy.128 Likewise, North and Fawcett argue that Kaufman is

a ‘striking example of insularity’ – where an English court refused to apply an acceptable

126 Ibid at 598. 127 North & Fawcett, Cheshire and North, 12th ed, supra note 18 at 124: ‘This contract could scarcely be regarded as offensive to some fundamental principle of justice, for there is nothing particularly reprehensible in allowing a person to escape criminal proceedings at the price of paying full compensation to the sufferer.’ Collier says that the best interpretation is ‘an agreement to stifle prosecution’: KG Collier, Conflict of Laws, 3d ed (Cambridge, UK: Cambridge University Press, 2001) at 216 and n 113. (In his main article on undue influence in public policy, Collier decides to ‘disregard Kaufman, in part because the case “has not lacked critics”’: JC Collier, ‘Public Policy and Foreign Judgments – Undue Influence – A Difficult Answer to a Simple Problem’ (1984) 43:1 Cambridge LJ 47 at 48.) The case is also criticized in Dicey, supra note 92 at 727 (appendix, n 3). See also John Delatre Falconbridge, Essays on the Conflict of Laws, 2d ed (Toronto: Canada Law Book Co, 1954) at 388; and see discussion of critiques of the case in National Surety, supra note 22 at paras 27-28 (describing the case as being ‘the subject of considerable adverse comment’). 128 As Dicey argues, it seems difficult to understand how the type of duress in Kaufman could violate public policy when English courts had held as late as 1860 that foreign acquired contractual rights to slavery could be recognized: ‘Are we to believe that compounding an offence is more obviously contrary to universal justice than slavery?’ Dicey, supra note 92 at 727 (appendix, n 3).

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foreign law.129 The authors argue that the case should have come out the other way, because

the contract at issue ‘could scarcely be regarded as offensive to some fundamental principle of

justice, for there is nothing particularly reprehensible in allowing a person to escape criminal

proceedings at the price of paying full compensation to the sufferer.’130 Similarly, Kahn-

Freund argues that the English court in Kaufman did not act in the proper ‘spirit of [the]

principle of relativity’ – the guiding cosmopolitan idea in conflicts of laws that the normative

diversity of positive law of different jurisdictions should be respected.131 As discussed in

Chapter 1, a mere difference between foreign and forum law is insufficient to engage public

policy; a more fundamental principle must be at stake.132 Such a fundamental principle, Kahn-

Freund suggests, is lacking in Kaufman.

Kaufman is thus a leading example of a public policy case that is thought to be wrongly

decided. But in my view, the case is best understood as a core example of rule of law values

at work. In Chapter 2, I argued that an important aspect of the liberty dimension of the common

law constitutionalist account of the rule of law is what I called the consent principle: the law

must protect each person’s ability to decide for herself how her life should go by instituting a

consent requirement in private law. Through such a requirement, the law ensures that private

persons cannot interfere with the bodies or things of others without their consent. This

substantive requirement of the rule of law ensures that individuals are not subjected to the

129 North & Fawcett, Cheshire and North, 11th ed, supra note 10 at 132. 130 This analysis relies on a misunderstanding of the case: the threat to induce contract was not directed at the criminal (Mr. Gerson) but rather at his wife, an innocent party, whose property was legally separate from his under French law; this misunderstanding of the facts of the case contributes in part to their failure to recognize the important moral issue at stake. In any event, the principle North and Fawcett point to is clearly not the basis on which the case was decided – the court ignores the argument and focuses exclusively on the consent issue. 131 Kahn-Freund, ‘Reflections,’ supra note 5 at 59. 132 As discussed supra in Chapter 1, Part I.

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arbitrary power of other private persons, because their bodies and their things are protected

from interference unless that interference is specifically authorized.

The consent principle is an important corollary to the sui juris principle. If each person

has a right to be her own master, as a matter of the rule of law, then she should not be able to

be interfered with by others without her consent. She is the person in charge of her body, and

if other private persons try to interfere with her without her consent, then her independence

has been violated. Any interference by another must be actively consented to, and to avoid this

problem, the substance of law must ensure that changes to one’s private rights are generally

only permitted on the basis of consent.133

When read with the context of this important common law constitutionalist principle,

the reasoning in Kaufman takes on new significance. The French law allowing a contract that

was formed through duress that vitiated the consent of one of the parties violated a

fundamental, substantive rule of law principle in the common law tradition – the consent

principle. Applying French law to vindicate the contract in Kaufman would have allowed Mr.

Gerson to interfere with Mrs. Kaufman’s rights (in this case, her property rights) without her

having consented to such an interference. The French law that violated this consent principle

could not be applied in an English court, without violating the court’s duty to uphold the rule

of law, and therefore had to be refused application on the basis of public policy. With this

context, the importance of the moral principle at stake in Kaufman – the consent principle –

becomes clear.134

133 This is, of course, only as a general matter. There is a range of special relationships, such as parent/child, trustee/beneficiary, etc. in which legal obligations are not founded on consent. But (i) in the case of contractual obligations, which are the focus here, and (ii) outside of these familiar classes of special relationships, new legal obligations between legally competent adults are only acquired through consent. 134 This interpretation of Kaufman is adopted in Royal Boskalis Westminster NV and Others v Mountain and Others, [1998] 2 WLR 538 (CA (Eng)).

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This analysis shows that the leading critique of the case is incorrect. Recall that scholars

criticized Kaufman for using public policy in the face of a trivial moral problem, particularly

when compared with the use of the exception in Somerset, where the grave moral wrong of

slavery was under consideration. But in my analysis of Kaufman, the moral principle at stake

was itself a fundamental requirement of the rule of law in the common law tradition: the

foundational idea that each person is in charge of her own body and her things vis-à-vis other

private persons. This is not some trivial principle, but rather a fundamental aspect of the rule

of law in the common law tradition.135

Furthermore, my analysis demonstrates an important continuity between Somerset and

Kaufman: both cases are concerned with ensuring that the law allows individuals to be their

own master, not subject to the arbitrary power of others, whether it be through a complete

denial of their legal personality and subjecthood (the sui juris principle) or through non-

consensual interference (the consent principle). Both principles are foundational aspects of the

rule of law in the common law tradition – suggesting that, in contrast to the prevailing view of

these cases, Kaufman and Somerset should be seen as consistent with one another, rather than

at odds.

My reading of Kaufman is also supported by a number of other public policy cases in

which duress vitiating consent is invoked as a reason to refuse to recognize foreign law.136 In

the case of Szechter v Szechter, for instance, an English court held that it could not recognize

135 And this normative point is true even if on the specific facts of Kaufman it was not an especially serious case of duress. But that is just the point: while Dicey and the other scholars who have commented on the case seem to think that public policy inquiry has to do with the seriousness of the violation of a certain norm, my claim is that public policy is invoked when there is a certain type of principle that is violated – those connected fundamentally to ensuring that individuals are not subject to arbitrary power through law. 136 In addition to these cases discussed below, In the Estate of Fuld, Decd (No 3) v Attorney General, [1968] P 675 at 698 (Probate, Divorce & Admiralty Division) also emphasizes the importance of the consent principle in its discussion of whether to apply public policy. See discussion in RH Graveson, ‘The Fuld Case’ (1966) 15:4 ICLQ 937.

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a marriage that took place in Poland and was valid under Polish law. The marriage was entered

into solely so that one party would be released from detention as a political prisoner in order

to access urgent medical treatment, which the English court took to be a form of duress. The

English court granted the married parties’ request to have the union declared a nullity even

though the marriage was valid under the applicable Polish law.137 As the court held, since ‘the

will of one of the parties … has been overborne by genuine and reasonably held fear caused

by threat of immediate danger … to life, limb or liberty … the constraint destroys the reality

of consent to ordinary wedlock.’138 In other words, if consent is vitiated by duress, a marriage

137 Szechter v Szechter, [1971] 2 WLR 170, [1971] P 286 (Probate, Divorce & Admiralty Division) [Szechter]. Hartley calls it the ‘leading case on consent’: TC Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35:6 Mod L Rev 571 at 579. For an account of the case, see David McLean & Mary Hayes, ‘But I Didn’t Really Want to Get Married,’ in Stephen Gilmore, Jonathan Herring, & Rebecca Probert, eds, Landmark Cases in Family Law (Oxford: Hart Publishing, 2011) ch 5.

The facts of Szechter are extraordinary and the case warrants further study. The case concerns a woman named Nina Karsov. Nina was born to a Jewish family in Poland in 1940. While she was a baby, Nina was sent with her mother to a concentration camp by train. Her mother, seeking to save Nina’s life, threw her out the window of the train. Nina was found and rescued, but not before she sustained serious injury that did permanent damage to her health. Nina was raised, with no knowledge of her past or her real parentage, by a Roman Catholic family in Warsaw who fought with the Polish resistance. After the war ended, Mrs. Karsov, whom Nina thought to be her real mother, was imprisoned for allegedly having collaborated with the Germans, although she was exonerated after serving five years of her sentence. This injustice radicalized Nina. She began to conduct research on the secret political trials in Poland, and began to collaborate on writings with a prominent Jewish historian, Syzmon Szechter. Nina became close to Szechter and his wife Lydia. While on holiday with Mr. and Mrs. Szechter and their family, Nina and the couple were arrested by the Polish police for “anti-state activities.” While the Szechters were released (Mr. Szechter was a public figure in Poland), Nina was detained, where she was imprisoned for months in extremely harsh circumstances and regularly interrogated. (It was during these interrogations that Nina learned of her Jewish heritage; the Polish authorities accused her of conspiring with Szechter, arguing that their shared Jewish background was the motivation for their anti-government activities.) The case garnered significant international attention. Amnesty International declared Nina the Communist bloc ‘prisoner of the year’ in 1968, and Bertrand Russell wrote to the Polish government on her behalf.

Due to the injuries she sustained as a baby, Nina’s health had always been fragile, and it declined significantly during the period of her imprisonment. She was threatened with a lengthy imprisonment, re-arrest, or internment in a mental hospital. Recognizing that Nina was likely to die if she did not receive medical treatment, the Szechters devised a plan to save Nina. Mr. and Mrs. Szechter divorced, and Lydia escaped to Israel with their son. Mr. Szechter then married Nina in Mokotow Prison for the purposes of improving her treatment by the Polish authorities and ultimately securing her release. The plan succeeded. Nina and Mr. Szechter were able to negotiate for Nina’s release with the Polish government, and all the parties were reunited in London. Nina and Mr. Szechter then petitioned the English court to grant them a declaration of nullity, declaring their marriage void for duress; the court granted the request. 138 Szechter, supra note 137 at 298. See also H v H (1953), [1954] P 258 (Probate, Divorce & Admiralty Division) [H v H].

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that is valid under foreign law cannot be recognized as valid in England.139 In other similar

cases, the fact that a marriage took place under threat of criminal prosecution has been held to

constitute duress vitiating consent, and a ground for invoking public policy to refuse

application to foreign law.140 Likewise, English courts have refused to apply foreign law that

would uphold a marriage entered into through kidnapping and threats.141

B. Inconsistency in the Duress Case Law

Some scholars have argued, however, that the public policy case law on duress vitiating

consent has not been consistent. Most prominently, scholars have criticized English courts’

treatment of Nazi law; for example, David Fraser contrasts the treatment of two cases, In re

Meyer and Igra v Igra,142 to claim that the courts have not consistently found duress vitiating

consent to be sufficient grounds to invoke public policy.

In In re Meyer, an English case from 1971, the court followed Kaufman and Szechter

to hold that duress vitiating consent meant that a foreign divorce could not be recognized in

England.143 In Meyer, a married German couple had divorced during the war, so that the wife

and the couple’s daughter would not be subject to anti-Semitic persecution along with the

husband, who was Jewish. The tactic was a success, and the former husband, the former wife,

and the daughter all survived the war and reunited in England, where the pair held themselves

out as husband and wife (without being legally married) until the husband’s death in 1965. At

that point, an issue arose regarding the husband’s pension, which the wife was only entitled to

receive if she was married to the pensioner at death. She petitioned the English court for a

139 The court does not explicitly use the term public policy, but the reasoning is the same. 140 See Buckland v Buckland (1968), [1967] 2 WLR 1506, [1968] P 296 (Probate, Divorce & Admiralty Division). 141 See NS v MI, [2006] EWHC 1646 (Fam). See also B v I, [2010] 1 FLR 1721. 142 David Fraser, ‘“This is not like any other legal question”: A Brief History of Nazi Law Before UK and US Courts’ (2003) 19 Conn J Intl L 59 [Fraser, ‘Brief History of Nazi Law’]. 143 [1971] 2 WLR 401, [1971] P 298 (Probate, Divorce & Admiralty Division). See also H v H, supra note 138.

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decree that the 1939 German divorce was void for duress. Following Kaufman and Szechter,

the court held that the divorce should not be recognized because consent to the divorce was

procured through duress:144 ‘It is well established that where rights and liabilities depend on

consent, a consent given under duress is no true consent and the rights and liabilities will be

determined as if no consent had been given.’145 In the case of Mrs. Meyer, the threat of Nazi

persecution meant that she procured the divorce only to escape this threat, and that she did not

truly consent to this change in her status.146 Like Kaufman and Szechter, this seems to be a

clear example of the consent principle at work in the context of duress vitiating consent.

But scholars such as Fraser contrast the court’s treatment of Meyer with that of Igra v

Igra, a case decided in 1951 on very similar facts.147 There, a Jewish husband and a non-Jewish

wife were married and living in Germany when the Nazis came to power. The husband went

into exile, and the wife remained in Germany. The wife began living with another man, and in

1942 divorced her Jewish husband, pursuant to encouragement by the Gestapo.148 The parties

resumed cohabitation after the war in 1947, but did not reconcile, and the husband eventually

moved to the US and remarried. The wife brought a petition for a recognition that the divorce

was valid, which the husband (having remarried) did not oppose. The court agreed with the

wife that the marriage had been validly dissolved in 1942 under Nazi law, despite the racist

144 Ibid at 317. 145 Ibid at 305. 146 Ibid. However, the threat establishing the duress vitiating consent must be substantial. There must be a risk of ‘danger to limb,’ meaning ‘a serious danger to physical or mental health; and that ‘danger’ must include danger to at least a parent or child of the party.’ Ibid at 207. One question is whether this definition of duress is consistent with the weaker form of duress that was sufficient in Kaufman, because arguably Kaufman did not meet this test. Perhaps this means that while Kaufman was decided on the correct principle, the application of the principle to the particular facts of the case was incorrect. 147 Fraser, ‘Brief History of Nazi Law,’ supra note 142; Igra v Igra, [1951] P 404 (Probate, Divorce & Admiralty Division). Igra was decided in 1951, well before Meyer (from 1971). 148 As Hartley describes, though the divorce was ‘suggested’ by the Gestapo, ‘it was probable that the wife was not unwilling to obtain it.’ TC Hartley, ‘Divorce without Consent: Duress as a Ground for Refusing to Recognise a Foreign Decree’ (1971) 34 Mod L Rev 455 at 457 [Hartley, ‘Divorce without Consent’]. We do not know how the divorce was ‘suggested’ by the Gestapo.

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and discriminatory context in which she was encouraged by the authorities to get divorced.

Fraser argues that Igra and Meyer reveal an inconsistency in the way in which English courts

have treated Nazi law.

However, the court in Meyer distinguished Igra in several ways that are highly relevant

to my interpretation of public policy.149 First, in Igra both parties accepted the Nazi divorce,

ultimately consenting to it ex post; whereas in Meyer, the wife contested the divorce’s validity.

Second, no duress was alleged in Igra – as the court there found, the wife agreed to the divorce

of her own volition, as she was already living with another man. Thus, despite Fraser’s critique,

the distinctions between these cases seem to affirm the foundational importance of the consent

principle to the public policy exception.

C. Other Consent Cases

The connection between the public policy exception and the consent principle is also

established by other cases where foreign law was found to violate public policy when there

was an absence of consent for reasons other than duress, including lack of capacity to consent

and consent that was vitiated by mistake or fraud.

Let us begin by discussing cases in which public policy was invoked in contexts where

there was a lack of capacity to consent. Two recent choice of law cases from England are

paradigmatic examples: KC & Anor v City of Westminister and XCC v AA & Anor.150 These

cases involved a nearly identical set of facts. In both instances, parents arranged for their

severely mentally handicapped child (who was past the age of majority) to be married under

149 See Hartley, ibid. 150 [2008] EWCA Civ 198 (CA) [KC v City of Westminister]; [2012] EWHC 2183 (COP) [XCC v AA]. For an account of KC, see Rebecca Probert, ‘Hanging on the telephone: City of Westminster v IC’ (2008) 20 Child and Family Law Quarterly 395 [Probert, ‘Hanging on the Telephone’]. These cases have gone virtually unobserved in the literature, and yet they helpfully substantiate the continuing relevance of the consent principle to the public policy exception inquiry.

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Bangladeshi law.151 This practice was valid under Bangladeshi law, and the parents saw it as

a means to ensure that their handicapped children would be taken care of throughout their lives.

The question for the courts was whether the marriages, valid in Bangladesh, should be

recognized in the UK as a matter of public policy.152 In both cases, the courts found that

recognizing the marriage as valid would violate public policy.153 The handicapped parties in

both cases lacked the capacity to consent to marriage or sexual relations. The party in XXC had

a significant learning disability, little language, and little comprehension; the court observed

that she ‘needs assistance with almost all aspects of her daily life.’154 She could not participate

in her wedding ceremony (she was slumped in a chair, without apparent knowledge of the

proceedings)155 and lacked the ability to comprehend the meaning of marriage.156 While the

party in KC was able to say ‘yes’ during his marriage ceremony, the court found that this was

likely a result of his echolalia (a condition in which an individual will frequently repeat the

last word spoken to him without understanding its meaning), which negated ‘any meaningful

151 No ill intent was meant by this, however; the parents wanted to be sure that their disabled child would be cared for after the parents died. KC v City of Westminister, ibid at para 44; XCC v AA, ibid at para 9. One question that arises out of this factual scenario is why in both of these cases the parties marrying IC and DD would consent to do so. In DD’s case, she was married to her cousin AA, who was able to come to England on a visa obtained after the marriage. XCC v AA, ibid at para 3. In IC’s case, we are not told why the marriage took place, although it is clear that the parents thought it was their duty to provide a wife for IC. 152 In KC, the marriage took place over the phone, a valid procedure under Bangladeshi law, through a ceremony recognized in Bangladesh. In XCC, the marriage took place in Bangladesh. Under the choice of law rules in England, the formal validity of marriage is governed by the place of celebration, while the capacity to marry is as a general matter governed by the domicile of each of the parties to the marriage. Collins, Conflict of Laws, vol 2 at 789, 810. (However, as Probert and others have argued, perhaps the choice of law rule should be altered in the case of telephonic marriages, which are in some sense conducted in two places – and that the parties should be required to abide by the law of both places. Probert, ‘Hanging on the Telephone,’ supra note 150 at 398.) Both marriages were formally valid according to the law of Bangladesh. KC v City of Westminister, supra note 150 at para 32; XCC v AA, supra note 150 at para 39. However, IC and DD were both domiciled in England, and local social services authorities in the UK challenged the recognition of the marriages in England. They argued both that IC and DD did not have the capacity to marry under English law, and, in any event, that recognizing the marriages would violate public policy – and that therefore the marriages could not be recognized as valid in England. 153 KC v City of Westminister, ibid at paras 31, 59, 85; XCC v AA, ibid at paras 72, 93. 154 XCC v AA, ibid at para 2. 155 Ibid at para 26. 156 Ibid at para 27.

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participation in the ceremony on his part.’157 He had the mental capacity of a child of less than

three; he therefore could not consent to sexual activity or marriage. In both cases the courts

concluded that the parties had not consented to their marriages, and lacked the capacity to

consent to marriage or sexual relations. Despite the validity of the marriages under

Bangladeshi law, this fundamental lack of consent was sufficient for the English courts to

invoke the public policy exception.158

However, there have also been public policy cases that go the other way – in which

lack of capacity to consent (according to the forum’s legal definition of capacity) is not a

sufficient ground for invoking the public policy exception. In a 1968 case Mohamed v Knott,

a marriage between a 13 year old girl and a 25 year old man that took place in Nigeria was not

found to violate English public policy.159 Even though in England the age of consent to sexual

activity was 16, the court held that cultures will inevitably differ on the age of consent, and

maturity may be reached at different times in different places.160 There was therefore no

impediment to recognizing the marriage as valid in England. This holding appears to challenge

157 KC v City of Westminister, supra note 150 at para 49. 158 Probert is critical of consent as a basis for this decision. She notes that many women do not fully consent to their marriages or that their choices are constrained for a range of reasons, economic and otherwise. Probert, ‘Hanging on the Telephone,’ supra note 150. Of course, while it is true that choices can be constrained, there is a clear legal and normative difference between a limited range of choices and a party who lacks entirely the ability to choose. 159 [1968] 2 WLR 1446, [1969] 1 QB 1 (Div Ct). For accounts of the case, see IGF Karsten, ‘Child Marriages’ (1969) 32 Mod L Rev 212; Michael Freeman, ‘The Morality of Cultural Pluralism’ (1995) 3 Int’l J Child Rts 1. 160 This is phrased in racist and colonial language. As the court put the point, ‘When they say that “a continuance of such an association notwithstanding the marriage, would be repugnant to any decent-minded English man or woman,” they are, I think, and can only be, considering the view of an English man or woman in relation to an English girl and our Western way of life. I cannot myself think that decent-minded English men or women, realising the way of life in which this girl was brought up, and this man for that matter, would inevitably say that this is repugnant. It is certainly natural for a girl to marry at that age. They develop sooner, and there is nothing abhorrent in their way of life for a girl of 13 to marry a man of 25. Incidentally it was not until 1929 that, in this country, an age limit was put on marriage.’ Ibid at 15. In addition to being racist and colonial, the test specified here – whether the marriage was ‘repugnant to any decent-minded English man or woman’ has been criticized by some scholars as insufficiently specific. See John Murphy, ‘The Recognition of Overseas Marriages and Divorces in the United Kingdom’ (1996) 47 N Ir Legal Q 35 at 38.

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my claim that the public policy exception will be invoked when a foreign legal transaction

takes place without consent.

One possible response is that the case would simply have come out differently if it were

decided today; there is a growing recognition of the lack of capacity of children to consent to

marriage, and UNICEF has recently characterized marriage below the age of 18 as ‘a

fundamental violation of human rights.’161 Yet Mohamed v Knott may also be distinguished

from KC & Anor v City of Westminister and XCC v AA & Anor on a principled basis.162 In

Mohamed v Knott, there was neither an indication that the 13 year old girl was not of sound

mind nor that she did not consent to the marriage. (Indeed, the court specifically notes that she

wanted the marriage to be found valid in England.) In KC & Anor v City of Westminister and

XCC v AA & Anor, by contrast, the court observed that there was no case to be made that the

parties could consent. Public policy cases focusing on the capacity to consent where a minor

party manifests consent163 might be distinguished from those cases where no consent can be

obtained at all.164

161 UNICEF, ‘Child marriage is a violation of human rights, but it is all too common’ (May 2015), UNICEF.org, online: <http://data.unicef.org/child-protection/child-marriage.html>. Leading conflicts scholars have made this point. See Clarkson & Hill, Conflict of Laws, supra note 9 at 392. It has also been criticized on other grounds. For example, Deech has said that the likelihood of martial breakdown means that the child in this case was left rather less well off than had the marriage not been recognized. Ruth Deech, ‘Immigrants and Family Law’ (1973) New Law Journal 110 at 111. Others have argued that the decision was culturally imperialist. See discussion in John Murphy, ‘Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages’ (2000) 49:3 ICLQ 643. However, others have argued in support of aspects of the decision in Mohammed v Knott. See Murphy, ibid, arguing for the importance of cultural context. 162 Note, though, that as Probert has argued, English courts have grown increasingly concerned about forced marriage, so it is possible that the difference between the cases is simply the growing awareness of this problem. Probert, ‘Hanging on the Telephone,’ supra note 150 at 403-404. 163 See John Murphy, International Dimensions in Family Law (Manchester: Manchester University Press, 2005) at 108 [Murphy, International Dimensions], arguing in favour of a sliding scale for when an individual has reached the age of maturity sufficient to marry. 164 Probert is critical, however, about our ability to reconcile these two cases, as she sees no concern in Mohammed v Knott as to whether a party was committing a criminal offense whereas she sees it as determinative in KC. Probert, ‘Hanging on the Telephone,’ supra note 150.

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The role of the consent principle is also evident in cases where public policy is invoked

to reject the application of foreign law that allows changes to a person’s private rights, even

though consent to such changes was vitiated by mistake or fraud.165 For an example of mistake

vitiating consent, take Mehta v Mehta. In that case, a British woman travelled to India and

participated in a ceremony that was conducted in Hindustani, a language she did not speak or

understand.166 She thought that the ceremony was a conversion to Hinduism, but in actual fact

it was a marriage ceremony. Despite her lack of comprehension of the meaning of the

ceremony, the marriage was valid under Indian law.167 Upon returning to England, the woman

obtained a decree of nullity on the basis of her mistake. She had never intended to marry at all,

the court concluded, and thus the marriage could not be legally recognized.168 While the case

does not explicitly invoke the concept of public policy or of consent, its logic is clear.

Subsequent cases have clarified, though, that if the public policy exception is to be invoked in

the context of a private right that was mistakenly consented to, the mistake must go to the heart

of the transaction, and there must be a genuine and clear absence of consent due to the mistake

in question.169

165 Note also that fraud is an available defense, separate and distinct from public policy, in the context of the recognition and enforcement of foreign judgments. See Beals v Saldanha, 2003 SCC 72 [Beals]. 166 Mehta v Mehta (1945), [1945] 2 All ER 690, 174 LT 63 (Probate, Divorce & Admiralty Division) [Mehta]. Mehta has been interpreted as a ‘good example’ of a case where consent is vitiated due to mistake: MDA Freeman, ‘Marriage and Divorce in England’ (1995) 29 Family Law Quarterly 549. However, Mehta has primarily been cited in the literature as an example of a case in which the courts recognized a potentially polygamous marriage for the purpose of granting a decree of nullity. See, e.g. JHC Morris, ‘The Recognition of Polygamous Marriages in English Law’ (1953) 66 Harvard Law Review 961, 970-971. 167 Mehta, supra note 166. 168 Ibid. 169 This issue was addressed directly in Kassim (otherwise Widmann) v Kassim (otherwise Hassim), [1962] 3 WLR 865 (Probate, Divorce & Admiralty), wherein a petition for nullity came before an English court from a woman who wished to end her marriage on grounds of cruelty by her husband. The husband cross-claimed, arguing that his marriage to the petitioner should be void by grounds of polygamy, because he had already been married in Southern Rhodesia some years before. In response, the petitioner’s counsel argued that the husband’s first marriage was void because the husband mistakenly thought it was a monogamous marriage, instead of a polygamous marriage, and that this lack of consent means that the husband was not in fact married before and that therefore the petitioner’s claims could proceed. The case thus turned on the question as to whether a mistake regarding the polygamous or monogamous character of a marriage was sufficient to find consent lacking. The

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We can also see the consent principle at work in cases where consent is obtained

through fraud. For example, take Kendall v Kendall, an English case from 1977.170 In Kendall,

a husband asked his wife to sign several documents in Spanish, which she did not read or

speak. It turned out, though, that the documents were Bolivian divorce papers, and that the

husband had fraudulently obtained the wife’s consent to get a divorce so he could remarry in

Bolivia!171 Upon learning about this deception, the wife petitioned an English court for a

declaration that the Bolivian divorce should not be recognized in England, and that the court

recognize her ongoing marital status. The court had no trouble finding that the Bolivian divorce

was manifestly contrary to public policy,172 as the divorce was ‘obtained by deception.’173 The

wife did not consent to the Bolivian proceedings because she could not understand them, and

therefore the divorce could not be recognized by an English court.

D. The Consent Principle and the Public Policy Exception

This part has demonstrated that there is a fundamental connection between the consent

principle and the public policy exception in practice. In a range of cases, common law courts

court held that: ‘Voluntary consent of both parties is … fundamental to the validity of a marriage. Mistake may in certain circumstances vitiate consent and thus render the marriage void or voidable. But the authorities indicate that in English law the categories of mistake which will have this effect are extremely restricted.’ The court went on to hold that ‘the mistake of the respondent in this case should not be regarded as so fundamental as to vitiate his consent to marry,’ and that therefore the husband was found to have been married prior to his marriage to the petitioner. A mistake vitiating consent must therefore be of an extraordinarily fundamental nature for public policy to be invoked. For an analysis echoing my account of Mehta and Kassim, see PMA Hunt, ‘Error in the Contract of Marriage’ (1963) 80 S African LJ 231 at 251-252. 170 (1977), [1977] 3 WLR 251, [1977] Fam 208 (Family Division) [Kendall]. For an account of the case, see AC Hutchinson, ‘Bolivian Betrayal: Public Policy and Recognition of Foreign Divorces’ (1978) 41:1 Mod L Rev 91. This short case comment also connects public policy to the idea of substantial justice, which is another term that courts use to describe the concept (see Adams v Cape Industries (1984), [1990] Ch 433 (UK CA) [Adams]). 171 Despite the way in which it was procured, the divorce was valid in Bolivia, as the wife did not need to be present for the divorce proceedings to be valid. There may have been a fraud claim that could have been brought in Bolivia but this was not addressed in the case. 172 Kendall, ibid. Commentators have, however, suggested that public policy was not the only means by which this result could have been reached. For example, Murphy argues the same result could have been achieved under the objection that the wife was not given an opportunity to participate in the hearings. Murphy, International Dimensions, supra note 163 at 151. 173 Kendall, ibid at 214. As O’Brien remarks, the ‘evidence of deception could not have been clearer.’ John O’Brien, Conflict of Laws, 2d ed (London & Sydney: Cavendish Publishing Ltd, 1999) at 576.

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have refused to recognize foreign law that would allow changes to a person’s private rights

without her consent. Consent can be lacking for a range of reasons – such as duress vitiating

consent, lack of capacity to consent, or mistake or fraud vitiating consent – and there is strong

evidence of an important connection between the consent principle and the use of the public

policy exception.

As I argued in Chapter 2, the consent principle is an essential aspect of the common

law constitutionalist account of the rule of law, because it protects the freedom as

independence of persons (in its liberty dimension) by ensuring that others can only interfere

with one’s rights if one consents to the interference. This principle is central to the rule of law,

as it prevents individuals from being subject to the arbitrary power of other private parties.

There is therefore an important connection between the rule of law in the common law tradition

and the use of the public policy exception in practice. The coherence and significance of the

consent principle as an aspect of the public policy exception has been essentially overlooked

by scholars to-date.174 Thus this part makes an important contribution to the literature by

identifying this important use of the exception. I also provide an important reinterpretation of

Kaufman v Gerson, arguing that this notoriously criticized public policy case should in fact be

understood as motivated by an essential common law value – the consent principle – which is

frequently invoked in other public policy cases as well. Kaufman is neither the outlier nor the

trivial use of the exception that it is often thought to be by scholars.

Part III: The Halley and the Responsibility Principle

The third canonical case I turn to in order to explore a potential connection between

the public policy exception and the liberty dimension of the common law constitutionalist

174 As noted above, an important exception is Mann, ‘Lack of Consent,’ supra note 19.

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account of the rule of law is The Liverpool, Brazil, and River Plate Steam Navigation Co Ltd

v Henry Benham and Others, also known as The Halley.175 The Halley is a Privy Council case

from 1868, and it is often viewed as having established the so-called ‘double actionability’ rule

in choice of law in torts.176 Under this rule, foreign law could not apply to a tort dispute heard

by an English court, unless the tort would also have been actionable in England.177 (This long-

standing common law rule was abolished in England by statute in 1995, and in Canada by case

law in 1994.178) While the traditional reading of the case emphasizes its role in the double

actionability jurisprudence, I will argue that The Halley is better understood as a public policy

case decided on the basis of common law constitutionalist rule of law reasoning.179

A. The Halley

The Halley was a tort case that arose out of a collision between two ships on the Scheldt

River in Belgium. A Norwegian sailing ship, the Napoleon, was anchored in the river, when it

was hit by a British steamship named the Halley. The Napoleon sustained considerable

damage, and her owners brought suit against the Halley and her owners in English court.180

The Napoleon’s owners argued that the collision was due to negligence on the part of

the Halley. The Halley’s owners conceded that the collision was a result of negligence, but

175 The ‘Halley’, supra note 4. 176 As noted above, The ‘Halley’ is generally understood to stand for the double actionability principle in choice of law in tort. Before The ‘Halley’ was decided and interpreted to stand for this principle in Phillips v Eyre (1870), 6 QB 1 [Phillips], it was established that foreign torts could be brought in England and that they were to be decided by the lex loci: Ibid at 82-9. 177 Ibid. 178 See Private International Law (Miscellaneous Provisions) Act 1995, s 10, abolishing the double actionability rule in England. In Canada, the Phillips v Eyre rule was incorporated into the jurisprudence in McLean v Pettigrew, [1945] SCR 62, which was overruled in Tolofson v Jensen, [1994] 3 SCR 1022. 179 My claim is that the problem with foreign law in The Halley was not that it was simply different from the English rule on point (what the double actionability rule would hold) but rather that the foreign law under consideration violated English public policy. The holding of the case has therefore been misunderstood. 180 The suit proceeded in personam against the Halley’s owners and in rem against the Halley, itself. Anglo-American admiralty law allows a ship to be named as a defendant on the fictional basis that it was the ship itself that caused the injury, even when liability must be demonstrated on a normal basis against those who were piloting the ship. This allows the ship to be used, in the event of a finding against her owners, to satisfy the judgment.

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argued that they were not responsible, because when the collision took place the Halley was

actually being steered by a ‘compulsory pilot.’181 Compulsory pilotage is a legal requirement

imposed by the local authorities in many harbors and rivers around the world. It requires that

a vessel sailing through a waterway be sailed by a local ‘pilot’ who is familiar with customs

and features of that waterway, to reduce the risk of collisions and accidents. The compulsory

pilot is not chosen by the ship’s master but rather is employed and selected by the authority

that controls the waterway itself – and the ship’s master is compelled to let the pilot aboard to

steer.

The Napoleon’s owners argued that it did not matter that the Halley was being steered

by a compulsory pilot at the time of the collision. The normal choice of law rule in tort was to

apply the law of the place where the tort occurred, and since the tort took place in Belgium, it

should be governed by Belgian law.182 Under the law of Belgium, compulsory pilotage was

not a defense to tortious liability for a ship or its owner. Even though the owner did not hire

the pilot – and indeed had no choice as to whether the pilot came aboard the ship – Belgian

law would still hold the owner liable for the tortious acts of the compulsory pilot. Thus, if

Belgian law were to be apply, the owners of the Halley would have been found liable.

However, the Halley’s owners argued that it would be wrong for this Belgian liability

rule to apply. Under English tort law, a master can only be held liable for the acts of a servant

when the master actually hires and controls the servant. If a master is not responsible for a

servant’s actions in any way, then the master cannot be held liable in tort law for those actions.

This rule is derived from the fundamental principle in English law that one cannot be a

181 See David J Bederman, ‘Compulsory Pilotage, Public Policy, and the Early Private International Law of Torts’ (1989-1990) 64 Tul L Rev 1033. 182 The ‘Halley’, supra note 4 at 195.

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wrongdoer if one is in no way responsible for the allegedly wrongful acts. Given the

importance of this English principle, the Halley’s owners argued, it would be wrong to apply

Belgian law in English court to establish liability. The Halley’s owners ‘did not select and had

no power of selecting’ the pilot, and ‘the collision was not caused by the negligence, default,

want of skill, or improper conduct of any person on board the Halley, except the said river

Pilot.’183

The Privy Council agreed with the Halley’s owners that it would be problematic to

apply Belgian law in this context, and that English law should decide the dispute. The Privy

Council’s reasons centered on the lack of wrongful conduct on the part of the Halley’s owners.

Since ‘no wrong had been committed by the Defendants, no right of action against them

exists.’184 It would be ‘contrary to principle … to give a remedy in the shape of damages in

respect of an act which, according to its own principles, imposes no liability on the person

from whom the damages are claimed.’185 In other words, an English court cannot impose

liability on a person who did not act wrongfully, even if this type of liability is permitted by

some foreign state’s law.

B. Reinterpreting The Halley as a Public Policy Case Motivated by the Responsibility Principle The dominant reading by courts and conflicts scholars of the holding in The Halley is

that the Privy Council imposed a double-actionability rule for torts: English courts can only

apply foreign law to resolve a tort that took place elsewhere if English tort law would also have

imposed liability;186 there must be liability under both foreign and English law. This

183 Ibid at 200. 184 Ibid at 202. 185 Ibid at 204 (emphasis added). 186 See e.g. the discussion in Kuwait Airways, supra note 14.

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interpretation of The Halley was adopted in the case of Phillips v Eyre,187 decided shortly after

The Halley, which formally articulated the double actionability rule.188

But as other leading conflicts scholars such as Otto Kahn-Freund and Moffatt Hancock

have pointed out,189 Phillips v Eyre’s interpretation may not be the best reading of The Halley;

instead, the case is best understood as a public policy case. Under this reading, the problem

with the Belgian law is not that it imposed liability in a context where English law would not

have,190 but rather that the nature of the liability it imposed was contrary to English public

policy.191 However, beyond suggesting that public policy is at play, Kahn-Freund and Hancock

say little about what would have justified or motivated the court to invoke public policy in The

Halley; they do not tell us what is wrong with Belgian law from a public policy perspective.

Building upon Kahn-Freund and Hancock’s observation that The Halley is best viewed as a

public policy case, however, my rule of law account can help to make sense of the case.

Recall that in Chapter 2, I argued that an important principle implied by the liberty

prong of the common law constitutionalist account of the rule of law is what I called the

responsibility principle. This idea, I argued, is basic to legal liability. As a general matter, we

are able to hold people liable if they are responsible for wronging another person; and we

cannot hold people liable if they are not in fact responsible for wronging another person.

Liability must track the moral agency or responsibility of the alleged wrongdoer. We can see

that this idea must be a basic component of legality in the following way: if private law held

187 For a discussion of historical context of Phillips v Eyre, see Kostal, Jurisprudence of Power, supra note 95 (and in particular, Kostal’s Epilogue on the case). 188 See Phillips, supra note 176. 189 Kahn-Freund, ‘Reflections,’ supra note 5; see discussion of Hancock’s work in supra note 13. 190 A reading that Kahn-Freud calls a ‘complete denial of private international law.’ Kahn-Freund, ‘Reflections,’ supra note 5 at 50. 191 This reading is supported in part by the fact that the Privy Council invokes Story’s version of the public policy exception to justify their holding. The ‘Halley’, supra note 4 at 203.

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us liable for things that we did not do, then there is no way to conform our behaviour to law.

The law would simply act on us randomly, not operating as a means of directing human

behaviour through rules but simply as arbitrary coercive force. To operate as law at all, legal

liability must in some way track the moral responsibility of the alleged wrongdoer. Thus the

responsibility principle should be seen as a basic component of legality.

This responsibility principle is captured in common law vicarious liability (respondeat

superior) doctrine: the master can typically only be held liable for the actions of her servant if

she was responsible for having selected, directed, or authorized the actions of the servant in

some way.192 And it is this manifestation of the responsibility principle in the context of

vicarious liability that seems to be at work in The Halley. It is clear from the Privy Council’s

reasons that what was problematic about the Belgian law on vicarious liability was that it

allows for liability without responsibility. As the Privy Council put it:

The tort for which damages are sought to be recovered in this cause was a tort occasioned solely by the negligence or unskillfulness of a person who was in no sense the servant of the Appellants, a person whom they were compelled to receive on board their Ship, in whose selection they have no voice, whom they had no power to remove or displace, and who, so far from being bound to receive or obey their orders, was entitled to supersede, and had, in fact, at the time of the collision, superseded, the authority of the Master appointed by them; and their Lordships think that the maxim, ‘qui facit per alium, facit per se,’ [he who acts through another acts himself] cannot by the law of England be applied, as against the Appellants, to an injury occasioned under such circumstances; and that the tort upon which this cause is founded is one which would not be recognised by the law of England as creating any liability in, or cause of action against, the Appellants.193

192 The test for responsibility over the servant has been formulated in a number of ways: see Yewens v Noakes (1880), 6 QBD 530 (CA) at 532 (the servant must be ‘subject to the control of the master as to the manner in which he shall do his work’); Stevenson, Jordan, and Harrison v Macdonald and Evans, [1952] 1 TLR 101 at 111 (using the ‘organization’ test); 671122 Ontario Ltd v Sagaz Industries Canada Inc, [2001] 2 SCR 983 at paras 46-48 (employing a ‘total relationship of the parties’ analysis). However, some scholars have argued that in fact respondeat superior actually remains a form of liability without responsibility, and that therefore it should be impermissible. See e.g. Oliver Wendell Holmes,‘The History of Agency’ (1882) 5 Harv L Rev 1 at 14. 193 The ‘Halley’, supra note 4 at 202 (italics in original).

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It is easy to see how this paragraph was misinterpreted in Phillips v Eyre to require that a

foreign tort be actionable under both foreign law and the law of England (i.e. as the double

actionability rule). But if we read this paragraph from a public policy perspective, it is clear

that what was problematic about the Belgian law was that it established liability where no

individual responsibility on the part of the defendant could be made out. For the court, this was

a fundamental principle that an English court could not violate, even if it was provided for in

an applicable foreign law. Thus The Halley provides strong support for my theory that public

policy will be used when a foreign law would violate the rule of law by allowing for legal

liability in a context where the defendant was not responsible for the impugned action.

This understanding of The Halley is supported by other cases in which foreign law that

imposed liability without ensuring that the defendant was responsible for the wrong in question

has been found to violate the public policy exception. Double recovery of damages has been

found by Canadian courts to violate public policy – a clear example of liability not tracking

the moral responsibility of the defendant.194 Other Canadian cases have suggested that

extraordinarily high damages imposed under the liability rules of another jurisdiction will be

subject to the public policy exception;195 we can read such cases to prohibit foreign law that

imposes liability far beyond the moral responsibility of the defendant. Likewise, a leading

English case called Adams v Cape Industries concerning the recognition and enforcement of

foreign judgments – not the choice of law context on which this project focuses – provides

further support for this view. In Adams, the court refused to recognize a foreign judgment in

194 See e.g. Lambert Re, [2002] OJ No 3163 (CA); National Integrity Development Inc v Trower, [2001] OJ No 735 (double recovery prohibited); Wong v Wei [1999] BCJ No 768 (no limit to non-pecuniary damages under California law). 195 See e.g. Kidron v Grean (1996), 48 OR (3d) 775 (Gen Div). See also the discussion in Robert Wai, ‘In the Name of the International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International Law’ (2001) 39 Can YB Intl Law 117.

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which damages were imposed without assessing the actual wrong done to the plaintiff,196

another clear example of where liability that is not tied to the moral responsibility of the

particular defendant will be refused application in the common law forum.

Finally, this reading of The Halley is also supported by Justice LeBel’s dissent in an

important Supreme Court of Canada case, Beals v Saldanha, which succinctly states that the

responsibility principle is an essential aspect of the public policy inquiry. Beals was also a case

about the application of the public policy exception in the context of the recognition and

enforcement of foreign judgments. However, the logic and content of LeBel’s judgment are

worth examining as he directly considered the importance of responsibility as a principle of

the common law.197 In dissent, LeBel J described the use of the public policy exception as

follows:

[The public policy exception] should … apply to foreign laws that offend basic tenets of our civil justice system, principles that are widely recognized as having a quality of essential fairness. Among these, I would include the idea that civil damages should only be awarded when the defendant is responsible for harm to the plaintiff, and the rule that punitive damages are available when the defendant’s conduct goes beyond mere negligence and is morally blameworthy in some way. These are basic principles of justice that are reflected in some form in most developed legal systems, although the particular form in which they are expressed may vary.198

Justice LeBel’s account of the public policy exception affirms my reading of The Halley. He

argues that legal liability should only be imposed when the defendant is responsible for the

harm to the plaintiff. He describes this responsibility principle as a ‘basic[] tenet of our civil

justice system’ and as part of the public policy inquiry; thus foreign law that denies the

196 See Adams, supra note 170. 197 Of course, this case may be of more limited relevance to my account because it is from the recognition of judgments context and not the choice of law context. 198 Beals, supra note 165 at para 223.

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responsibility principle must be refused application through the use of the public policy

exception. The Halley provides an important example of this principle at work.

C. Responsibility Without Liability: Branco v American Home Assurance Co

There is a flip side to the idea that liability cannot be imposed when there is no

responsibility on the part of the defendant: if the defendant’s conduct is morally blameworthy

and she is responsible for the legal wrong to the plaintiff, liability should track that

responsibility. If the damages awarded do not reflect the extent of the moral responsibility of

the plaintiff (i.e. where there is responsibility but not sufficient liability), this can be just as

arbitrary as scenarios in which there is liability without responsibility. Justice LeBel’s

statement from Beals also makes this point:

[The public policy exception] should … apply to foreign laws that offend basic tenets of our civil justice system, principles that are widely recognized as having a quality of essential fairness. Among these, I would include the idea that civil damages should only be awarded when the defendant is responsible for harm to the plaintiff, and the rule that punitive damages are available when the defendant’s conduct goes beyond mere negligence and is morally blameworthy in some way. These are basic principles of justice that are reflected in some form in most developed legal systems, although the particular form in which they are expressed may vary.199

Here, LeBel J argues that the responsibility principle also requires that punitive damages be

available in situations where mere compensatory damages do not accurately track the moral

blameworthiness of the defendant. This is necessary, he suggests, to ensure that liability can

match moral responsibility.200 LeBel J casts this principle as a matter of public policy.

199 Ibid. 200 There is an important debate in private law theory as to whether punitive damages are consistent with the aims of private law. For one critique of punitive damages from the standpoint of corrective justice, see Ernest J Weinrib, ‘Punishment and Disgorgement as Contract Remedies’ (2003) 78:1 Chicago-Ken L Rev 55; for responses, see Curtis Bridgeman, ‘Corrective Justice in Contract law: Is there a Case for Punitive Damages?’ (2003) 56:1 Vand L Rev 237 [Bridgeman]; Pey-Woan Lee, ‘Contract Damages, Corrective Justice and Punishment’ (2007) 70:6 Mod L Rev 887 [Lee]. For the claim that it violates the public law taboo on applying foreign penal law to apply foreign punitive damages awards, see Paul A Hoversten, ‘Punishment but Not a Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law’ (2016) 116 Mich L Rev 759.

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We can see this principle at work in public policy cases, which have established that if

foreign law fails to provide liability rules that properly capture the moral responsibility of the

defendant – where there is responsibility but no legal liability – then the foreign law cannot be

applied as a matter of public policy. This principle is most evident in Branco v American Home

Assurance Co, a recent case from the Saskatchewan Court of Appeal.201

Luciano Branco was a skilled welder, working in a mine in Kyrgyzstan, when in 2000

his foot was seriously injured in a workplace accident. The accident left Mr. Branco

permanently disabled and unable to work. Mr. Branco spent many years trying to obtain

disability insurance benefits from his employer (the subsidiary of a Saskatchewan mining

company) and two insurance companies. All three parties resisted paying Mr. Branco the

insurance benefits to which he was entitled for almost a decade, and both the insurance

companies tried to get Mr. Branco to settle his claim at an ‘unconscionably’ low rate.

Mr. Branco brought suit in Saskatchewan against the three parties for insurance

benefits (a contractual claim). A key issue in the case was what state’s law should apply to

resolve the dispute between Mr. Branco and one of the two insurance companies, Zurich Life

Insurance Company. Mr. Branco argued that the dispute should be decided by the law of

Saskatchewan, whereas Zurich argued that Swiss law should apply.

The Canadian choice of law rule for insurance contracts states that the contract is to be

governed by the law with which it has the ‘closest and most substantial connection.’202 In

Branco, the Saskatchewan Court of Appeal concluded that the contract was most closely

connected to Switzerland (in part because the contract specified that Swiss law was to govern

201 2015 SKCA 71 [Branco]. This case has attracted significant attention from the insurance bar, but no scholarly commentary, and it is not well known in the conflicts canon in Canada. 202 Branco, ibid at para 160, citing to Imperial Life Assurance Co of Canada v Segundo Casteleiro Y Colmenares [1967] SCR 443.

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any ensuing dispute). However, the Court of Appeal went on to conclude that it would be

impermissible to apply Swiss law because in this instance it violated public policy. Swiss

contract law prohibits awarding punitive damages; only contractual damages are available.

This is an essential difference between Swiss and Canadian law because, as the Saskatchewan

Court of Appeal puts it, ‘the concept of punitive damages is deeply rooted in [the Canadian]

legal system.’203

While punitive damages are rarely used in the Canadian legal system, they serve an

important normative function: they are used to ensure that damages awards are properly

responsive to the wrong that was committed by the defendant. ‘Punitive damages … affirm

society’s belief that wrongdoers who engage in exceptional conduct should not escape their

just desert…. [they] serve a vital function in sanctioning conduct that cries out for punishment

where no other punitive remedy is available.’204 This function is also particularly important in

the context of significant power imbalances, such as insurance contracts, where they can

provide an important protective role when it is all too easy for one party (such as an insurance

company) to take advantage of a vulnerable party (such as an injured insured).205 The Court

relied on LeBel J’s statement in Beals regarding the appropriateness of the use of public policy

in the context of foreign law that makes punitive damages unavailable.206 By making this

aspect of damages unavailable to the court in this particular context, the Court of Appeal

concluded that Swiss law violated public policy, and that therefore the dispute had to be

resolved under Canadian law – where punitive damages were available.207

203 Branco, supra note 201 at para 173. 204 Ibid at paras 174-5 (quoting Ontario Law Reform Commission, Report on Exemplary Damages (Toronto: Ontario Law Reform Commission, 1991)). 205 Branco, supra note 201 at para 176. 206 Ibid at para 187. 207 The court upheld the punitive damages award made by the trial judge, although it reduced its quantum. Ibid at para 224.

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Branco demonstrates that if a foreign law provides for a standard of liability that does

not properly capture the moral responsibility of the defendant in inflicting a wrongful harm on

the plaintiff, then that law may violate public policy.208 In other words, if a defendant’s degree

of moral agency is not captured by the liability of the foreign law, this can violate public

policy.209 Branco thus affirms my theory that the use of public policy has tracked this aspect

of the responsibility principle.

D. Does a No-Fault Insurance Scheme Violate the Responsibility Principle?: Leonard v Houle

A possible counterargument to my claim that the public policy exception has been used

when foreign law violates the responsibility principle comes from a Canadian interprovincial

conflicts case called Leonard v Houle, decided by the Ontario Court of Appeal in 1997.210

Leonard was a tort suit that arose out of a car accident in Quebec, which permanently disabled

the plaintiff Seamus Leonard. The car accident resulted from a high-speed police chase that

began in Ontario and continued across the provincial border into Quebec. The police were

chasing Stéphane Houle, who had stolen a van in Ontario, when Mr. Houle’s vehicle swerved

into oncoming traffic and hit Mr. Leonard’s car. Mr. Leonard brought a negligence suit in an

Ontario court against Mr. Houle, the Ontario and Quebec police officers, and their police

forces.

The question facing the Court in Leonard was whether the law of Ontario or the law of

Quebec applied.211 Following Tolofson, the Canadian choice of law rule in torts is that they

208 For an argument that a correlative theory of private law requires punitive damages in contract, see Bridgeman, supra note 200; Lee, supra note 200. 209 However, the limitation imposed by the foreign law must truly be extraordinary; the amount provided would have to be ‘manifestly wrong or unjust.’ Metaxas v The Galaxias, [1990] 2 FC 400 (TD) at para 21. See also the discussion of a damages cap in Lebert v Skinner Estate (2001), 53 OR (3d) 559 (SCJ). 210 [1997] OJ No 4563 (CA) [Leonard]. 211 Ibid. This issue was raised at the summary judgment stage.

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are governed by the law of the place of the accident, which in this case was Quebec.212

However, Quebec law prohibits tort suits in the context of automobile accidents, instead

providing compensation through a public no-fault insurance scheme (and thus limiting the

recovery that is available to plaintiffs). In Leonard, the plaintiff argued that the dispute should

be governed by the law of Ontario because it would violate the public policy exception to apply

Quebec law in this instance.213 Writing for the Court, Charron JA (as she was then) rejected

the public policy argument and held that the dispute should be governed by the law of the place

of accident, as required by Tolofson: in this case, the law of Quebec.214

This result initially appears puzzling on my theory of the public policy exception:

Quebec law prohibiting tort claims in the context of car accidents seems to violate the

responsibility principle, and thus my approach would imply that public policy should have

been invoked here. A no-fault insurance scheme that prohibits tort claims arguably does not

establish a liability framework that tracks the moral responsibility of persons. It prohibits

plaintiffs from bringing suits that hold defendants accountable for their negligence, even where

a defendant was clearly morally responsible for harming another. Putting the point sharply,

no-fault regimes fail to hold agents responsible for their freely taken wrongful actions. How,

then, can the result in Leonard be consistent with my theory of the public policy exception?

Perhaps the best way to reconcile the result in Leonard with my account is as follows.

We should not understand the responsibility principle to require every wrong one person can

do to another to necessitate private law liability. The common law has never required this; as

Ernest Weinrib has famously argued, there is no requirement that ‘a given slice of social life’

212 Tolofson, supra note 178. 213 Leonard, supra note 209. The plaintiff also argued that Ontario law should apply because the police chase started in Ontario, and thus the dispute was factually connected to Ontario. 214 Leonard, ibid. On appeal to the Supreme Court of Canada, leave to appeal was refused: [1998] 1 SCR xi.

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and the possible injustices that persons can do to one another in that slice of social life be

addressed through liability in private law.215 It is perfectly coherent, as Weinrib argues, to

address the possible wrongs that people can do to one another through a public law scheme of

distributive justice, like the no-fault insurance scheme at stake in Leonard.

What the responsibility principle does require is that if a society sets up a private law

regime in which one person is liable to another for violating their rights, that this liability

regime should be organized so that the moral responsibility of individuals is taken into account.

We cannot hold people liable for things that they did not do (as The Halley establishes), and if

we are to hold them liable, that liability must track their degree of responsibility (as Branco

establishes). But if we choose not to hold persons responsible for a particular type of wrong,

that is not in itself a violation of the responsibility principle.216

E. The Responsibility Principle and the Public Policy Exception

This part has established that the common law constitutionalist requirement that any

liability that the law imposes must track the responsibility of the parties is employed by courts

in the public policy context. This responsibility principle is an essential aspect of the rule of

law, because if the law imposes liability where there is no responsibility on the part of the

law’s subjects, it ceases to function as law at all and instead operates merely as arbitrary power.

We can see this responsibility principle at work in The Halley, where the court refused to apply

foreign law on the basis that it imposed liability upon the defendant when the defendant was

not responsible for the alleged wrongs. The responsibility principle is also at work in Branco,

215 Ernest Weinrib, Corrective Justice (Oxford: Oxford University Press, 2012) at 6. 216 This argument has not convinced everyone. See Dyzenhaus’ argument that it is difficult for corrective justice scholars, who are perhaps the most concerned with agency, to accommodate no-fault insurance schemes within their account of private law. David Dyzenhaus, ‘Liberty and the Legal Form’ in Lisa M Austin & Dennis Klimchuk, eds, Private Law and the Rule of Law (Oxford: Oxford University Press, 2014) 92 at 112.

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where a Swiss law prohibiting punitive damages was refused application by a Canadian court

because it did not appropriately capture the moral responsibility of the defendant in the case.

We also see a powerful summary of this principle and its connection to the public policy

exception in Justice LeBel’s dissent in Beals.

Conclusion and Implications

This chapter has argued that in a series of public policy cases, English and Canadian

courts have drawn on the liberty dimension of the common law constitutionalist account of the

rule of law to refuse to recognize foreign law as a matter of public policy. Each of the three

aspects of the liberty dimension of the account that I set out in Chapter 2 – the sui juris

principle, the consent principle, and the responsibility principle – is invoked in several key

public policy cases in English and Canadian jurisprudence to justify refusing to apply foreign

law. These cases do not use the language of the rule of law, or of freedom as independence,

but their reasons are rooted in the core rule of law values of the common law tradition that

common law constitutionalists have sought to identify. This analysis thus begins to establish

my claim that the public policy exception has been invoked by courts to reject foreign law that

violates the forum’s substantive conception of the rule of law. This chapter has begun to

establish this claim with respect to one aspect of the rule of law on the common law

constitutionalist account, and I will continue to flesh out this claim in the subsequent chapters

of this project with respect to other aspects of the common law constitutionalist account.

This analysis may have important implications for both private international law and

for common law constitutionalism. In the context of private international law, the most obvious

implication for the field is that I have begun to identify a core, principled basis for using public

policy: when foreign law breaches fundamental liberty values of the common law constitution.

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Identifying this core public policy principle will assist judges in dealing with cases going

forward, focusing their analysis on whether foreign law violates the fundamental principles of

the common law that protect the freedom as independence of persons. This analysis also forces

us to reconsider the standard interpretation of a number of cases in the public policy canon. As

I have argued, public policy was invoked in Somerset – not, as commonly suggested, because

slavery was a foreign penal law – but because slavery denied the sui juris principle. Kaufman

is not an example of a trivial use of the public policy exception, as it is often viewed to be, but

rather is a key example of the consent principle at work. And The Halley is best understood

not as establishing the double actionability rule, as scholars and courts have maintained, but

instead as an example of a case where public policy is used when foreign law violates the

responsibility principle. My analysis has also brought to light some important public policy

cases that have yet to be discussed by scholars in any detail, and has demonstrated how these

cases affirm my reading of canonical public policy cases.

My analysis also has another potentially important implication for private international

law more generally. The claim in this chapter is that public policy has been used to ensure that

foreign law that violates the liberty dimension of freedom as independence cannot be applied

in a common law court, and will be refused application on the basis of public policy. This

means that the public policy exception has been invoked in a series of cases to protect the

essential agency and autonomy of individuals, by protecting their rights to be sui juris, to

require consent for others to use their means, and by ensuring that liability tracks

responsibility.

But this conclusion is at odds with the typical understanding of the public policy

exception, which has long been perceived to operate contrary to the ‘autonomy’ of the parties

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to a dispute. This traditional perception is generated by an important doctrinal principle in

choice of law called the ‘party autonomy principle.’217 In accordance with this principle, a

judge deciding what law applies to a transnational dispute should apply the law to which the

parties gave their explicit or implicit consent.218 The public policy exception is a deviation

from this general principle, allowing courts to override the parties’ choice of law. As such, the

public policy exception has been understood to operate in opposition to notions of party

autonomy, working to undo the choice of the parties – and their consent to a particular law –

in favour of other values. Public policy is ordinarily seen as a ‘recognized limit[] on party

autonomy.’219

217 As mentioned in Chapter 1, the public policy exception is often assumed to undermine other important values in choice of law. The party autonomy principle is another such value. 218 This principle has become increasingly prevalent in choice of law rules over the past half century. As Yntema and others have argued, the party autonomy principle has deep roots in the common law tradition, but it was not until the mid- to late-twentieth century that this principle became accepted doctrinally and subject to wide-spread scholarly debate. Hessel E Yntema, ‘“Autonomy” in Choice of Law’ (1952) 1:4 Am J Comp L 341. Key to this development was the Privy Council’s acceptance of the principle in Vita Foods Products Inc v Unus Shipping Co, Ltd, a case from 1939, in which Lord Wright held that a choice of law clause in a contract should be accepted, so long as the choice was ‘bona fide’ and there was no public policy rationale for avoiding the choice: [1939] AC 277 (PC) [Vita Foods]. Vita Foods had an important effect on subsequent cases, which began to accept party autonomy in choice of law matters with increasing regularity. Perhaps the most important reflection of this development was the inclusion of party autonomy (with some qualifications) in the Second Restatement, published in 1971; while the reporters of the First Restatement, led by Joseph Beale, had refused to include the principle of party autonomy, the reporters on the Second Restatement felt that the principle now reflected the ‘majority’ position. While the doctrine has obtained the highest degree of acceptance in the context of contracts, in which the parties specify ex ante the law that will govern the contract in case of any subsequent dispute, scholars have argued that its influence can also be observed throughout choice of law doctrine, including in fields such as tort and family law. See e.g. Adrian Briggs, Agreement on Jurisdiction and Choice of Law (Oxford: Oxford University Press, 2008) ch 2; Peter Nygh, Autonomy in International Contracts (Oxford: Clarendon Press, 1999) [Nygh, Autonomy]; PE Nygh, ‘The Reasonable Expectations of the Parties as a Guide to the Choice of Law in Contract and Tort’ (1995) 251 Recueil des cours 269; Janeen Carruthers, ‘Party Autonomy in the Legal Regulation of Adult Relationships: What Place for Party Choice in Private International Law?’ (2012) 61:4 ICLQ 881. 219 Mills, Confluence, supra note 116 at 293. See also Hessel E Yntema, ‘Contract and Conflict of Laws: “Autonomy” in Choice of Law in the United States’ (1955) 1 New York Law Forum 46 at 47 (‘the principle of autonomy is subject to certain well-recognized limitations’ including public policy) [Yntema, ‘Contract and Conflict of Laws’]; ‘Conflict of Laws: “Party Autonomy” in Contracts’ (1957) 57:4 Colum L Rev 553 (‘Invocation of the public policy of the forum is a frequent deterrent to party autonomy’); Gisela Ruhl, ‘Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency’ in Eckart Gottschalk, Ralf Michaels, Giesela Rühl, & Jan von Hein, eds, Conflict of Laws in a Globalized World (Cambridge, UK: Cambridge University Press, 2007) 153; Matthias Lehmann, ‘Liberating the Individual from Battles between States: Justifying Party Autonomy in Conflict of Laws’ (2008) 41 Vand J Transnat’l L 381 at 388 (‘The limits to party autonomy are not drawn by mandatory law, but by public policy’).

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This tension, as Walter Wheeler Cook has observed, is made explicit in the

foundational case establishing party autonomy in contract, Vita Foods. Lord Wright’s

judgment establishes ‘the freedom of the parties to choose the applicable law in the broadest

terms.’220 However, even in that foundational case, Lord Wright is careful to note that party

choice of law is always limited by public policy.221 Thus from its inception, party autonomy

and public policy have been set up in opposition to each other; public policy is a means of

‘avoiding’ the law chosen by the parties and thus overriding their autonomy and consent.

My analysis in this chapter necessitates an important amendment to this standard view:

I have shown that public policy also operates to protect and preserve the autonomy, agency,

and consent of the parties. Indeed, public policy has been used to protect a much more

sophisticated and deeper notion of autonomy than that invoked in the context of the party

autonomy principle. According to theorists writing both for and against party autonomy

doctrine, respecting the agency of parties is done by ratifying their choice – that is, by applying

the law that they have either explicitly or tacitly chosen.222 Autonomy is therefore understood

in narrow terms, relating to the explicit choices that the parties have made (in this case, to be

governed by a particular law).

By contrast, the concept of liberty and autonomy invoked by common law

constitutionalists does not mean simply ratifying individual choices. Their focus is on ensuring

that law respects humans as purposive beings, capable of making choices about how their own

lives should go; however, that does not entail that the law must respect any particular choice

220 Nygh, Autonomy, supra note 218 at 11. 221 ‘[W]here the English rule that intention is the test applies, and where there is an express statement by the parties of their intention to select the law of the contract, it is difficult to see what qualifications are possible, provided the intention expressed is bona fide and legal, and provided there is no reason for avoiding the choice on the ground of public policy.’ Vita Foods, supra note 218 at 290. 222 That is, by applying the law that they have either explicitly or tacitly chosen: Yntema, ‘Contract and Conflict of Laws,’ supra note 219.

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that individuals have made. (For example, recall the reasoning in Somerset, where Somerset’s

lawyers argued that a slave contract could never be upheld by an English court even if one

party consented to contract into slavery. Such a contract would still vitiate the slave’s status as

an autonomous person by denying their subjecthood and placing another person in charge of

the slave’s life.) The sense in which ‘autonomy’ is respected on this account is very different

– it requires treating legal subjects as purposive beings with moral agency, not simply ensuring

respect for a particular choice they have made.

There is also another important difference between party autonomy doctrine and the

public policy exception. The doctrine of party autonomy seeks to safeguard individual

autonomy by respecting the choices that the parties have made regarding what law they wanted

to apply to their dispute. But this is the full extent to which party autonomy doctrine seeks to

safeguard and protect the autonomy of parties – it only relates to the selection of the applicable

law. By contrast, at the public policy stage of the analysis, a court will confront the substance

of a foreign law, and it will engage in a thoroughgoing analysis of whether the foreign law is

consistent with individual autonomy and agency.

For these reasons, my analysis suggests that the public policy exception should not be

understood to operate in ‘opposition’ to the autonomy of the parties, as it has typically been

understood in the context of party autonomy doctrine. Rather, it should be viewed to work in

tandem with the party autonomy principle, extending the protection of autonomy beyond the

mere idea of ratifying a choice of law to protect a deeper and more substantive conception of

autonomy.

The connection I have demonstrated between the public policy exception and the

protection of a robust account of individual agency and autonomy may also be able to explain

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why public policy is occasionally invoked in a range of other (traditional) contexts. A thorough

argument on this point is beyond the scope of this project. However, the connection to this

richer conception of autonomy might help us better understand the role of public policy in

contexts such as contracts in restraint of trade,223 the prohibition on maintenance and

champerty,224 the prohibition on usury,225 the prohibition on consanguineous (i.e. incestuous)

relationships,226 and gambling contracts.227 Each of these contexts, in different ways, is a

situation in which the autonomy of one of the parties could be said to be compromised, such

that foreign law that approved of such a relationship would violate the public policy exception,

when it is understood to protect the freedom as independence as persons. Thus my account of

the exception may have broad explanatory power to cover other public policy cases.

Finally, in addition to these implications for private international law, my analysis in

this chapter may also have implications for common law constitutionalism, and its account of

the rule of law. As my analysis has demonstrated in this chapter, the common law

constitutionalist account of the rule of law, if carefully elucidated and considered in context,

is closely tied to legal practice. Significantly, the type of arguments that Allan and Dyzenhaus

have made about the necessary substantive content of law are actually evident in the arguments

223 See e.g. Warner Bros v Nelson, [1937] 1 KB 209; Duarte v Black & Decker Corporation, [2008] 1 All ER (comm) 401; Adrian Briggs, The Conflict of Laws, 2d ed (Oxford: Oxford University Press, 2002) at 45. 224 See e.g. Trendtex Trading Corpn v Credit Suisse, [1982] AC 679. 225 See e.g. Great America Leasing Corp v Yates (2003), 180 OAC 130 (CA (Eng)). 226 See discussion in Cheni v Cheni, [1965] P 85 (Probate, Divorce & Admiralty Division). 227 See e.g. Saxby v Fulton, [1909] 2 KB 208 (CA (KB Div)); Moulis v Owen (1907), 76 KB 396 (KB); Boardwalk Regency Corp v Maalouf (1992), 6 OR (3d) 737 (OCA); GNLV Corp v Wan (1991), 30 ACWS (3d) 1132 (BCSC); Atlantic City Showboat Inc v Smith, [1993] OJ No 1561 (Ont Gen Div); Wynn Las Vegas, LLC v Li, [2012] MJ No 256; Boardwalk Regency Corp v Newman (1987), 15 CPC (2d) 102 (Ont Dist Ct); Desert Place v Zigdon, [1987] BCJ no 1213. There is also an extensive literature on whether foreign gambling contracts violate public policy. See e.g. Ebenezer OI Adodo, ‘Enforcement of Foreign Gambling Debts: Mapping the Worth of the Public Policy Defence’ (2005) 1:2 J Priv Intl L 291; Yeo Tiong Min, ‘Are Loans for International Gambling Against Public Policy?’ (1997) 1 Sing JICL 593; Neil Fagan, ‘Enforcement of Gambling Debts in England’ (1986-1987) 8 New York Law School Journal of International and Comparative Law 7.

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made when common law courts refuse application to foreign law. This provides support for

the view that their account actually reflects the law in practice.

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CHAPTER 4

THE PUBLIC POLICY EXCEPTION AND THE EQUALITY DIMENSION OF

THE COMMON LAW CONSTITUTIONALIST ACCOUNT OF THE RULE OF LAW Introduction

In this chapter, I will continue to explore whether adopting a common law

constitutionalist approach to the public policy exception in choice of law can account for the

way the doctrine has been used by English and Canadian courts. In particular, I will continue

to examine whether the reasons courts use to refuse to apply foreign law on public policy

grounds are rooted in the substantive rule of law values identified by common law

constitutionalists as essential principles of legal orders in the common law tradition.

Having explored the liberty dimension of the common law constitutionalist account of

the rule of law in Chapter 3, in this chapter I turn to the equality dimension of their account.

Recall that on the common law constitutionalists’ theory, the rule of law is meant to protect

individuals from arbitrary exercises of power. This means that the law cannot arbitrarily

discriminate between persons when articulating their rights and freedoms under law; and thus

the law cannot draw distinctions between persons that cannot be justified through reference to

any conceivable understanding of the public good. On this view, the law must protect a certain

type of equality by prohibiting discrimination on the basis of characteristics that are typically

unrelated to any legitimate public purpose1 – such as race, gender, or sexual orientation – as

1 Of course, this does not mean that laws that distinguish on the basis of such characteristics are always problematic from this rule of law perspective. Affirmative action regimes and other ameliorative schemes would clearly not be arbitrary exercises of power, as the distinction they draw between persons when identifying their rights and freedoms under law would be generated by a public purpose.

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these characteristics are generally thought to be irrelevant bases on which differing rights and

freedoms could be granted to persons under law.2

We can call this important rule of law value articulated in the common law

constitutionalist tradition the ‘equality principle.’ This chapter will therefore ask: is there a

connection between the equality principle and the use of the public policy exception by English

and Canadian courts to refuse to apply foreign private law? Has the equality principle been

used to conclude that foreign law violates public policy?

Some scholars have already taken preliminary steps to identify a connection between

discriminatory foreign laws and the public policy exception. When setting out the public policy

doctrine, several modern treatise writers argue that discriminatory foreign laws are a core

example of when public policy should be used to refuse to apply foreign law. For example,

Adrian Briggs argues that racially discriminatory laws are ‘so offensive’ that, in the choice of

law context, a court must treat such a law ‘as if it had never been made, on the ground that

even to recognize it as datum will conflict with the public policy of English law.’3 Likewise,

North and Fawcett characterize public policy as applying to ‘all disqualifications … which

restrict human freedom by penalizing certain classes of the population to the profit of others

(what the older jurists called privilegia odiosa).’4 Clarkson and Hill use a foreign law’s

2 As I note in Chapter 2, this does not mean that any laws that distinguish on the basis of such characteristics are illegitimate, or that distinctions made on the basis of these types of immutable/constructively immutable characteristics are the only distinctions we would say are arbitrary. These types of categories are meant to be illustrative of the view. 3 Adrian Briggs, The Conflict of Laws, 2d ed (Oxford: Oxford University Press, 2002) at 44 [Briggs, Conflict of Laws]. Note, though, that Briggs does not think that all types of discriminatory foreign laws should be treated the same way; he thinks that discrimination on the basis of gender may not always require a foreign law not to be recognized as a matter of public policy. I discuss a similar position infra at Part II.D. 4 PP North & JJ Fawcett, Cheshire and North: Private International Law, 11th ed (London: Butterworths, 1987) at 135. They go on to say that these types of laws ‘have only inter-territorial effect, for, in the eloquent words of Wharton: “To stretch international law further would be to engraft on free countries the paralyzing restrictions of despotisms.”’ Ibid at 35.

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prohibition on interracial marriage as their paradigmatic example of when public policy should

be invoked,5 and Dicey, Morris, and Collins argue that foreign legislation that is

‘discriminatory or oppressive’ should not be recognized as a matter of public policy.6

According to these leading treatise writers, then, foreign laws that discriminate between

persons on impermissible grounds are clear examples of when public policy should be used to

refuse to apply foreign law. However, scholars have not attempted to demonstrate that public

policy is used systematically by courts in practice to refuse to apply discriminatory foreign

laws.7 Nor have scholars probed the normative rationale for using public policy in this way, or

how this use is conceptually or normatively connected to other uses of the public policy

exception.8

This chapter will build on prior scholarship by arguing that the use of the public policy

exception to refuse to apply foreign laws that arbitrarily discriminate between persons is deeply

5 CMV Clarkson & Jonathan Hill, The Conflict of Laws, 3d ed (Oxford: Oxford University Press, 2006) at 15, 299 [Clarkson & Hill, Conflict of Laws]. 6 Sir Lawrence Collins, Dicey, Morris and Collins on The Conflict of Laws, 14th ed (London: Sweet & Maxwell, 2006) vol 2 at 1629 [Collins, Conflict of Laws]. The connection between discrimination and the use of public policy is also frequently invoked by judges, even when the case under consideration has nothing to do with discrimination. See e.g. McGrath & Ors v Riddell & Ors (Conjoined Appeals) [2008] UKHL 21 (‘There is nothing unacceptably discriminatory or otherwise contrary to public policy in these statutory provisions’); Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd, [1986] 2 WLR 24 (HL (Eng)) [Williams & Humbert] (extensively categorizing the uses of public policy, including the primary one: ‘English law will not recognise foreign confiscatory laws which, by reason of their being discriminatory on grounds of race, religion or the like, constitute so grave an infringement of human rights that they ought not to be recognised as laws at all’). 7 Scholars typically assert that such a connection exists without supporting this claim by referring to case law. See e.g. Alex Mills, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4:2 J P Int’l L 201 at 235 [Mills, Dimensions]; Clarkson & Hill, Conflict of Laws, supra note 5. Or they cite only to the now-classic case of Oppenheimer v Catermole and its holding that racially discriminatory foreign law ‘constitutes so grave an infringement of human rights that the Courts of this country ought to refuse to recognise it as a law at all.’ See e.g. Briggs, Conflict of Laws, supra note 3 at 44 (citing exclusively to Oppenheimer); Oppenheimer v Cattermole [1976] AC 249 (HL (Eng)) [Oppenheimer]. 8 Scholars appear to take it as obvious that public policy should be used to refuse to recognize discriminatory foreign laws, either on the grounds that this is required by international and domestic human rights law, or on the grounds that it is obviously morally problematic to apply discriminatory foreign law. See e.g. Briggs, Conflict of Laws, supra note 3 at 44; Mills, Dimensions, supra note 7 at 209, 221. For example, Clarkson and Hill say that a foreign prohibition on interracial marriage is ‘totally repugnant’, and this is why it should be refused application as a matter of public policy. Clarkson & Hill, Conflict of Laws, supra note 5 at 15. But why? While this may seem obvious to us as a statement of contemporary morality, it is not a very helpful legal standard and offers little sense of why it is that foreign interracial marriage prohibitions would violate public policy.

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grounded in the practice of common law courts. English and Canadian courts have frequently

held that foreign laws that discriminate on the basis of race, gender, and other arbitrary grounds

violate public policy. As evidenced by almost two centuries of common law judicial practice,

the connection between public policy and equality runs through an essential strand of public

policy jurisprudence; the exception has been used systematically to deny recognition to foreign

private law that discriminates between individuals on the basis of some arbitrary characteristic.

And this use of the exception is exactly what my common law constitutionalist account of the

exception would have predicted: courts invoke public policy when foreign law violates the

equality dimension of the common law constitutionalist account of the rule of law, by

according different legal rights and duties to persons on the basis of some arbitrary

characteristic that has no connection to a legitimate public purpose. This chapter will continue

to make the case that I began to establish in Chapter 3: that we can observe a sustained

connection between the use of the public policy exception in practice and the common law

constitutionalist account of the rule of law.9

To establish these claims, I will focus on three core cases to illustrate how the equality

principle operates in the public policy context: Hincks v Gallardo,10 Hyde v Hyde,11 and Chetti

v Chetti.12 These three cases all concern equality in the context of marital rights, and each

illustrates a different type of discrimination that, while permitted by foreign law, is rejected as

a matter of public policy: Hincks concerns discrimination on the basis of sexual orientation;

Hyde concerns discrimination on the basis of gender; and Chetti addresses discrimination on

9 Note, though, that my use of cases where discrimination on the basis of sexual orientation, gender, and race have been refused application is not meant to suggest that these are the only types of arbitrary discrimination that would violate the equality principle or the public policy exception. These categories are meant to be illustrative rather than exhaustive. 10 2013 ONSC 129 [Hincks]. 11 Hyde v Hyde and Woodmansee, (1866) [LR] 1 P & D 130 (Courts of Probate and Divorce) [Hyde]. 12 Chetti (Venugopal) v Chetti (Venugopal), [1909] P 67 (Probate, Divorce & Admiralty Division) [Chetti].

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the basis of race or ethnicity. I have selected three marital rights cases both because this allows

us to observe how different types of discrimination arise in the same area of the law, and

because this is by far the most representative area of discrimination-related public policy

cases.13

In Part I, I begin by discussing Hincks, a recent Ontario case. In Hincks, foreign law

that allowed same-sex couples to enter civil partnerships while excluding them from civil

marriages was refused application by an Ontario court on the basis of public policy.14 The

court held that a law offering same-sex couples a ‘separate but equal’ marital regime denied

the equality of same-sex couples. To recognize such a foreign law would ‘perpetuate

impermissible discrimination,’ and thus the foreign law was found to violate public policy.15

In reaching this conclusion, however, the court did not rely on any prior public policy cases or

connect this particular use of public policy to any general principle animating the public policy

jurisprudence. In addition, the court relied on Canadian Charter jurisprudence to reach its

conclusion, which suggests that perhaps the case’s holding was generated not by the common

law constitution’s unwritten rule of law values, but rather by the written guarantees of the

Canadian constitution protecting equality rights. Thus one might question whether Hincks

properly represents my common law constitutionalist account of the public policy exception.

I will argue, however, that the court’s conclusion in Hincks is not a stand-alone holding,

separate from the rest of the public policy jurisprudence; nor is it a product of Canada’s written

13 As Graveson remarks, ‘Cases involving foreign marriages have been the most fruitful source of difficulties on questions relating to the universality of status.’ RH Graveson, Conflict of Laws: Private International Law, 5th ed (London: Sweet & Maxwell, 1965) at 197. This may be because marriage is where base prejudices about the appropriate roles of men and women, or about the way people of different races should relate to one another, are revealed. It is in ‘the law of marriage, where conflicts law comes, perhaps, closer to human problems than elsewhere.’ Albert A Ehrenzweig, ‘Miscegenation in the Conflict of Laws’ (1960) 45:4 Cornell L Rev 659. 14 As I discuss below, the foreign law under consideration in Hincks was English law. 15 Hincks, supra note 10 at para 82.

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constitutional guarantees. Rather, we should understand the court’s conclusion in Hincks as

building on long-standing public policy jurisprudence in the common law tradition, applying

the deep-rooted equality principle to the relatively new frontier of equality in the context of

sexual orientation. And this equality principle is not the product of written Charter rights;

instead, we can understand the Charter’s particular equality protections as just one

manifestation of a much older tradition of common law reasoning that prohibits arbitrary

discrimination.16

In Part II, I show that we can see this common law equality principle at work in the

public policy context as early as 1866, in Hyde v Hyde.17 In Lord Penzance’s famous judgment,

the court refused to recognize foreign law permitting polygyny because it granted men legal

rights that were not granted to women, and thus it discriminated arbitrarily and impermissibly

on the basis of gender – rendering the foreign law under examination unable to be applied by

an English court. In Part III, I argue that we can also see early evidence of a connection between

racially discriminatory foreign law and the use of public policy. In Chetti v Chetti, an English

case from 1909, the court built on language from an earlier case (Sottomayer v de Barros, from

1879)18 to hold that foreign prohibitions on interracial marriage could not be recognized by an

English court as a matter of public policy.19 In reading Hincks, Hyde, and Chetti together, I

show that there is a strand of public policy jurisprudence according to which foreign laws that

16 This is not to deny, of course, that codification of rights guarantees in the form of a written constitution has no effect or is not normatively important. But the thought is that the rule of law values of the common law constitution are frequently actualized in common law jurisprudence through the logic of legality itself, regardless of the particulars of a jurisdiction’s written constitutional guarantees. 17 Hyde, supra note 11. 18 Sottomayer (otherwise de Barros) v de Barros, [1879] 5 PD 94 (Probate, Divorce and Admiralty Division) [Sottomayer]. 19 Chetti, supra note 12.

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discriminate on the basis of some arbitrary characteristic will be refused application as a matter

of public policy.

In each part, after my discussion of each core case, I expand my outlook to consider a

wide range of other lesser-known cases where we can see the equality principle at work. I also

respond to a number of important objections, including cases that ‘go the other way’ – where

foreign law clearly discriminated on the basis of sexual orientation, gender, or race, but where

public policy was not used to refuse to apply foreign law.

Part I: Hincks v Gallardo and Discrimination on the Basis of Sexual Orientation

A. The Facts in Hincks20

In this part, I begin to explore whether there is a connection between the equality

principle and the public policy exception by analyzing the case of Hincks v Gallardo. Hincks

was decided by a judge of the Ontario Superior Court of Justice in 2013,21 and was affirmed

by the Ontario Court of Appeal in 2014.22

The dispute in Hincks arose out of a relationship that began between two Canadian

men, Wayne Hincks and Gerardo Gallardo, in 2009.23 The couple settled in London, England,

where Mr. Hincks also had citizenship, and entered into a civil partnership, which at that time

was the only way for a same-sex couple in England to have their relationship formalized and

legally recognized. The civil partnership regime was introduced in the UK in 2004 through

legislation called the Civil Partnership Act.24 The rights created by the Act were only available

to gay couples – straight couples were not permitted to enter into civil partnerships, and gay

20 Enormous thanks to James Marks, Mr. Hincks’ attorney, who kindly provided me with the facta and the affidavits from the case. 21 Hincks, supra note 10. 22 2014 ONCA 494 [Hicks, OCA]. 23 Hincks, supra note 10 at para 2. 24 (UK), 2004, c 33 [Civil Partnership Act].

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couples were still prohibited from entering into traditional civil marriages. These two different

legal regimes – the civil partnership regime for gay couples and the civil marriage regime for

straight couples – afforded essentially the same legal rights and obligations,25 but the civil

partnership regime lacked the ‘name and status of marriage.’26 (This parallel track structure

was changed in 2014, when the UK parliament introduced same-sex marriage legislation in

England and Wales.27)

After entering into their civil partnership in the UK and residing there,28 the couple

eventually relocated to Toronto, Ontario for work reasons.29 But their relationship broke down,

and in 2011 Mr. Hincks filed for divorce in Ontario court under the federal Divorce Act,

seeking equalization of matrimonial property and spousal support under Ontario’s Family Law

Act. Under both of these Acts, relief was available to ‘spouses’ who could establish that they

were ‘married to each other.’30 Mr. Hincks thus sought a declaration from an Ontario court

that his UK civil partnership constituted a ‘marriage’ and that the parties were ‘spouses’ for

the purposes of the Divorce Act and the Family Law Act. Mr. Hincks argued that his civil

partnership met the statutory definition of marriage under Canada’s Civil Marriage Act, which

defined marriage as ‘the lawful union of two persons to the exclusion of all others.’31 Mr.

25 In their facta, the parties debated whether the Civil Partnership Regime would afford the same legal rights and obligations as civil marriage. Hincks v Gallardo, 2013 ONSC 129 (Factum of Applicant at paras 6, 36) [Applicant’s Factum] (arguing that the civil partnership regime was essentially identical to marriage); Hincks v Gallardo, 2013 ONSC 129 (Factum of Respondent at para 35) [Respondent’s Factum] (arguing that there were important differences between the two regimes). In her judgment, Justice Mesbur concluded that they were essentially the same. Hincks, supra note 10 at para 54. 26 Hincks, supra note 10 at para 32. 27 Marriage (Same Sex Couples) Act (UK), 2013, c 30 [Marriage (Same Sex Couples) Act]. However, civil partnerships remain exclusively available to gay couples, although it is currently subject to a court challenge on grounds that this discriminates against heterosexual couples who wish to enter civil partnerships. 28 Through this civil partnership regime, Mr. Gallardo obtained a civil partnership visa, which granted him the right to live in the UK. Hincks, supra note 10 at para 2. 29 Ibid at para 7. 30 RSC 1985, c 3 (2nd Supp), as amended; RSO 1990, c F 3. 31 Civil Marriage Act, SC 2005, c 33.

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Hincks thus saw the issue as primarily one of statutory interpretation – whether his UK civil

partnership met the statutory definition of marriage in Canada for divorce and support

purposes.

In response, Mr. Gallardo took the position that the couple had never been married,

because the status created by the UK’s same-sex civil partnership regime was not a marriage

under UK law; and thus no divorce could be issued and no division of property could be

granted in Ontario.32 Recognizing that the case might have constitutional dimensions, the

motion judge invited the Attorneys General (AGs) of Ontario and Canada to intervene.33 While

both AGs chose in intervene in the case, the two AGs sided with different parties: the Ontario

AG (under Dalton McGuinty’s Liberal government) sided with Mr. Hincks, in favour of

recognizing the UK civil partnership as a marriage; and the federal AG (under Stephen

Harper’s Conservative government) sided with Mr. Gallardo, against recognizing the UK civil

partnership as a marriage.34

While Mr. Hincks and the provincial AG saw the case primarily as a matter of statutory

interpretation, Mr. Gallardo and the federal AG framed the case as a choice of law matter. Mr.

Gallardo and the federal AG argued that under standard choice of law rules, the question of

whether the parties were married had to be decided by UK law. The normal choice of law rule

provides that the formal validity of a marriage ceremony is determined by the law of the place

where the marriage is celebrated (the lex loci celebrationis).35 In Hincks, the two men entered

32 Hincks, supra note 10 at para 15. 33 Ibid at para 12. 34 Hincks v Gallardo, 2013 ONSC 129 (Factum of Intervenor, the Attorney General of Ontario) [AG of Ontario’s Factum]; Hincks v Gallardo, 2013 ONSC 129 (Factum of Intervenor, the Attorney General of Canada) [AG of Canada’s Factum]. 35 Hincks, supra note 10 at para 20. Mr. Gallardo’s factum does not explicitly frame the matter in this way, but the AG of Canada does. See Respondent’s Factum, supra note 25; AG of Canada’s Factum, supra note 34 at para 33.

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into a civil partnership in the UK, and thus UK law should determine whether they were

married. But the legal relationship created by the UK civil partnership regime was by definition

not a marriage: UK law at that time explicitly stated that civil partnerships were not marriages,

and UK courts had held that there is a clear legal difference between same-sex civil

partnerships and opposite-sex civil marriages.36 Since the men’s relationship did not constitute

a marriage under UK law, where their legal relationship was established, Mr. Gallardo and the

federal AG argued that it could not be considered a marriage for the purpose of obtaining a

divorce and support in Ontario.

In response, Mr. Hincks and the Ontario AG argued that the UK’s civil partnership

regime effectively met the statutory definition of marriage under Canadian provincial and

federal law, and that a ‘modern approach’ to statutory interpretation required the court to

recognize the UK civil partnership as a marriage.37 In addition, and crucially for our purposes,

they argued that it would violate Canadian public policy to apply UK law in this instance.38

Finally, they also argued that to refuse to treat Mr. Hincks’ same-sex civil union as a marriage

for divorce purposes would be unconstitutional discrimination, in violation of the equality

guarantee set out in s. 15(1) of the Canadian Charter of Rights and Freedoms.39 For these

36 Indeed, in a case called Wilkinson, a UK court had held that UK statutory law on civil partnerships meant that a Canadian same-sex marriage could not be recognized as a civil marriage in the UK; instead, it was required to be recognized as merely a same-sex civil partnership. Wilkinson v Kitzinger, [2006] EWHC 2022 [Wilkinson]. See Justice Mesbur’s discussion of the case in Hincks, supra note 10 at para 30-37. 37 This was the focus of AG of Ontario’s argument. AG of Canada’s Factum, supra note 34. 38 Or to be more precise, the AG of Ontario argued that it would not violate Canadian public policy to recognize civil partnerships as marriages, whereas Hincks’ lawyer took the position that it would actively violate Canadian public policy to decline to recognize the civil partnership as marriage. AG of Canada’s Factum, supra note 34 at para 36; Applicant’s Factum, supra note 25 at para 56. Interestingly, this argument was made without reference to the public policy jurisprudence; no public policy or choice of law cases were cited in support of this proposition. 39 Applicant’s Factum, supra note 25 at paras 64-68; AG of Canada’s Factum, supra note 34 at para 41 (arguing that this position was consistent with the Charter but not arguing that it was required by the Charter).

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reasons, they argued, the couple’s civil partnership should be construed as a marriage, and the

Ontario court should be able to grant a divorce.

B. The Judgment in Hincks The motion to recognize the UK civil partnership as a marriage was heard by Mesbur

J of the Ontario Superior Court, who sided with Mr. Hincks and the AG of Ontario. Justice

Mesbur held that while ordinary choice of law rules would direct the court to apply the lex loci

celebrationis – the UK civil partnership regime that explicitly excluded gay couples from the

institution of marriage – it would violate public policy to do so.40 Instead, public policy

demanded that Mr. Hincks and Mr. Gallardo’s relationship be treated the way that Canadian

law would have treated them. In assessing how Canadian law would classify the union, Justice

Mesbur adopted the ‘modern’ approach to statutory interpretation urged by Mr. Hincks and

the Ontario AG, which dictated a functional approach to deciding what constitutes a

marriage.41 On this basis she held that Canadian law would have recognized the couple as

legally married; they therefore were to be considered to have been ‘married’ for the purposes

of obtaining a divorce, the division of property, and assessment of support in Ontario. On

appeal, this holding was affirmed by the Ontario Court of Appeal.42

What is important for our purposes is the reason why Justice Mesbur held that foreign

law would violate public policy. The normally applicable UK law violated public policy, she

held, because it impermissibly discriminated against gay couples.43 By creating a ‘separate but

equal’ legal regime exclusively for gay couples, while denying them access to the civil

40 Ibid at para 81. 41 Hincks, supra note 10 at para 80. 42 Hicks, OCA, supra note 22. The court accepted both the statutory and the public policy/Charter values holdings made by Justice Mesbur below. However, the court primarily emphasized the statutory interpretation reading of the case, rather than the choice of law reading. 43 Justice Mesbur also accepted the statutory equivalence claim, but she primarily rooted her argument in the public policy/Charter values approach to be discussed below.

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marriage regime that was available only to straight couples, UK law denied the equality of

same-sex couples and discriminated on the basis of sexual orientation.44 Treating gay couples

in this discriminatory way violated the ‘express values of Canadian society’ as articulated in

Canadian case law and statutes, and thus Justice Mesbur concluded that the UK regime was

‘clearly contrary to Canadian public policy.’45

Notably, however, Justice Mesbur did not take up Mr. Hincks’ invitation to find that

applying UK law in this context would formally violate s. 15 of the Charter.46 Rather, Justice

Mesbur found that applying UK law would violate ‘Charter values’ – i.e. constitutional values

that are meant to inform all legal interpretation in Canada, even when no formal violation of

the Charter is alleged.47 And the particular Charter value that the UK law violated in this

instance was the prohibition on discrimination on the basis of sexual orientation, as articulated

by the Ontario Court of Appeal in Halpern v Canada (Attorney General).48

In Halpern, the court had held that preventing gay couples from marrying, as Justice

Mesbur puts it in Hincks, was ‘contrary to Canada’s public policy, was discriminatory and

violated the equality guarantees of our Charter.’49 The court in Halpern found that excluding

gay couples from the marital rights granted to straight couples violated s. 15 of the Charter by

impermissibly discriminating on the basis of sexual orientation; and that the legal distinction

made between gay and straight couples could not be justified by any pressing and substantial

44 Hincks, supra note 10 at para 40. 45 Ibid at paras 37, 40. 46 While she does not explain why she does not take up this argument, it is presumably because the Charter does not apply directly in this context, as the law under examination is a UK statute. 47 Hincks, supra note 10 at para 40. Interestingly, no party urged Justice Mesbur to take this approach in their pleadings. 48 Ibid at para 27 (citing to Halpern v Canada (Attorney General), [2003] OJ No 2268 (CA) [Halpern]). 49 Hincks, supra note 10 at para 27. This is a different order from how the court approached things in Halpern, but the court in Halpern did reach the public policy conclusion that Justice Mesbur says they did. Halpern, supra note 48 at para 4.

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objective.50 Since there was no legitimate reason for distinguishing between the marital rights

accorded to gay couples and those granted to straight couples, the legal distinction between

the two groups was simply arbitrary.51 While Halpern was formally a Charter case that

involved the application of the written constitutional guarantee of equality set out in s. 15(1)

of the Charter, Justice Mesbur understood the holding in the case to also rely an important

‘Charter value’ of non-discrimination on the basis of sexual orientation that she could apply in

the Hincks context.52

C. The Equality Principle at Work in Hincks

In reaching her conclusion in Hincks, Justice Mesbur employed precisely the reasoning

that my rule of law approach to the public policy exception would predict. Recall that on the

common law constitutionalist’s theory, the rule of law is meant to protect individuals from

arbitrary exercises of power. This means that the law cannot arbitrarily discriminate between

persons when articulating their rights and freedoms under law; and thus the law cannot draw

distinctions between persons that cannot be justified through reference to any conceivable

understanding of the public good, such as distinctions made on the basis of an irrelevant

characteristic such as sexual orientation. This equality principle, common law

constitutionalists argue, is inherent in the common law tradition as an essential aspect of

legality that emerges in common law reasoning; it does not need to be instantiated in any

written constitutional instrument, or be made formally applicable through written law, but

rather must be applied by judges to all instances in which the court applies the law. For this

50 Halpern, supra note 48. 51 The court in Halpern does not use the word ‘arbitrary’ in their s. 1 analysis. But in holding that there was no pressing and substantial objective that could justify excluding gay couples from marriage, they echoed exactly the common law constitutionalist’s concern for discriminatory laws that are enacted without any legitimate public purpose behind the distinction. 52 Hincks, supra note 10 at para 27.

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reason, I argued in Chapter 2 that rule of law values such as the equality principle would likely

apply to and shape the public policy inquiry in the choice of law context.53

The common law constitutionalist equality principle thus has three essential aspects:

the rule of law prohibits (1) denying equal rights and freedoms to the law’s subjects; (2) who

are discriminated against on the basis of some arbitrary characteristic; and (3) this

‘constitutional’ value is an unwritten and essential feature of legality in the common law

tradition. In Justice Mesbur’s reasoning in Hincks, she echoed each of these features of the

common law constitutionalist equality principle when rejecting UK law as a matter of public

policy. First, she held that the UK marriage regime offers legal rights and freedoms to some

individuals that it denies to others; she thus identified a legal regime that blatantly denies the

equal freedom of the law’s subjects. Second, she noted that there is no reasonable basis for

making this distinction; as Halpern held, excluding same-sex couples from marriage is a

merely arbitrary denial of equal freedom on the basis of an irrelevant characteristic.54 Third,

she concluded that this prohibition on arbitrary discrimination on the basis of sexual orientation

is not (nor does it need to be) a matter of the formal application of the written constitution;

rather it is a matter of applying the law consistent with ‘Charter values’ – that is, constitutional

values that are inherent in the exercise of any legal authority.55 Justice Mesbur thus held that

53 See supra Chapter 2, Part III.B.iv. 54 Indeed, the distinction is this case is more than arbitrary, because it actively discriminates against gay couples by denying them the status of marriage. 55 See e.g. Hill v Church of Scientology, [1995] 2 SCR 1130 (discussing how the common law is meant to be interpreted in line with Charter values). Note, though, that this approach was not pleaded by the parties, as I discuss above. (Before Hincks was decided, though, Martha Bailey argued that Charter values should apply in just the way that Justice Mesbur held they did. Martha Bailey, ‘How will Canada Respond to Same-Sex Marriage?’ (1998-1999) 32 Creighton L Rev 105 at 117.) However, many scholars and judges have been critical of the use of ‘Charter values’ in Canadian case law, and have strongly questioned the role that these values are meant to play. See e.g. Matthew Horner, ‘Charter Values: The Uncanny Valley of Canadian Constitutionalism’ (2014) 67 Supreme Court Law Review 361; Gehl v Canada (Attorney General), 2017 ONCA 319 (debate between Justices Sharpe and Miller about the role of Charter values in Canadian law). If the Charter doesn’t formally apply in contexts like Hincks, these commentators have asked, why are courts employing the idea of ‘Charter values’? And what does this vague phrase mean? Without seeking to resolve this ongoing debate in Canadian

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UK law could not be recognized in this context, even though it would be the normally

applicable lex loci celebrationis. Hincks is therefore decided in just the way that the common

law constitutionalists would recommend: when analyzing the substance of foreign law under

public policy, the court acts to protect essential rule of law values including, in this case, the

equality principle.56

D. A Possible Problem: Can we Generalize from Hincks?

But there is one other notable feature of Justice Mesbur’s reasons in Hincks: in reaching

her conclusion, Justice Mesbur did not rely on any choice of law public policy cases.57 She did

not root her decision in the way prior courts have defined and used the exception, even though

there was a well-established public policy jurisprudence on which she could have relied.58

Likewise, when Justice Mesbur’s reasons were affirmed at the Court of Appeal, Hourigan JA

did not cite to any choice of law public policy cases.59 Instead, the two courts treated Halpern

as controlling.60

Justice Mesbur’s decision thus gives the impression of being a stand-alone holding –

an invocation of public policy on the basis of the equality principle in the context of sexual

legal scholarship, I think it is clear that in the Hincks case, Justice Mesbur is employing ‘Charter values’ to protect the type of constitutional values that common law constitutionalists argue inhere in every legal context, regardless of whether a written constitution would formally apply – the rule of law values articulated in the common law constitution. 56 Justice Mesbur also adopts an approach to statutory interpretation that would be commended by the common law constitutionalists. She says: ‘Where there is genuine ambiguity in the statute, that is, the provision at issue can be subject to differing but equally plausible interpretations, the presumption is that the interpretation that is consistent with the Charter shall prevail.’ Hincks, supra note 10 at para 76. This echoes David Dyzenhaus’ claim that judges have an essential interpretative function: they must interpret statutes in light of constitutional values to bring the law into conformity with the rule of law. See supra Chapter 2, Part IV.B. 57 While Justice Mesbur does cite to Hyde, which is a choice of law case (as will be discussed below), she doesn’t cite to it for its choice of law implications, but rather for its role in defining marriage. Hincks, supra note 10 at para 27. Justice Mesbur’s lack of reliance on choice of law case law may be because she to some extent rejects the conflicts framing introduced by Mr. Gallardo and the federal AG, in favour of the statutory interpretation framing introduced by Mr. Hincks and the provincial AG. 58 Unlike, say, the court that decided Somerset in 1772, when the doctrine was not yet established. 59 Hicks, OCA, supra note 22. Indeed, as mentioned above, the OCA seems to focus on the statutory interpretation framing of the case. 60 Ibid at para 42; Hincks, supra note 10 at paras 36, 42, 43.

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orientation discrimination that is unconnected to any other case’s use of the public policy

exception.61 We may also worry that the holding in Hincks is generated by the particulars of

Canadian Charter jurisprudence (by reference to the holding in Halpern) instead of some

broader equality principle that animates the use of the public policy exception. This would

suggest that reading the case as an example of unwritten common law constitutionalist values

at work in the context of public policy is perhaps misguided. This leaves us with an important

question for my account: Is Hincks’ recent use of the equality principle representative of the

public policy jurisprudence? Or is it a stand-alone holding, unconnected to the rest of the public

policy case law and generated only by the particulars of the Canadian Charter jurisprudence?

Part II: Hyde v Hyde and Discrimination on the Basis of Gender

In the subsequent two parts, I will argue that despite the court’s failure to reference it,

the Hincks approach is indeed representative of long-standing public policy jurisprudence.

There is an important and deep-rooted strand of public policy case law decided on the basis of

the equality principle that significantly predates the contemporary era of written equality

guarantees in domestic constitutional texts and international human rights instruments. I will

begin to establish this claim in this part by considering cases which have held that foreign law

that discriminates on the basis of gender violates the public policy exception. In doing so, I

turn first to the case of Hyde v Hyde.62

61 Her reasons thus echo the approach suggested by leading treatise writers, who as I outlined above tend to accept that the connection between public policy and equality is obvious; and they assume that it is not something deeply rooted in the actual jurisprudence of courts, or that is connected to other uses of the public policy exception, or that it even requires a particularly sophisticated theory of how public policy should be used. 62 Hyde, supra note 11.

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Hyde has been an integral part of the common law canon since it was handed down by

Lord Penzance in 1866.63 The case is famous (or perhaps infamous) for articulating the

common law’s longstanding definition of marriage as ‘the voluntary union for life of one man

and one woman, to the exclusion of all others.’64 On the basis of this definition, the court in

Hyde refused to recognize a foreign polygamous marriage as a matter of public policy.65

This key holding in Hyde has come under significant scrutiny in recent decades because

it has been understood to prohibit same-sex marriage, insofar as it explicitly defines marriage

in exclusively heteronormative terms.66 In its contemporary application, Hyde is thus notorious

for having prevented some courts from recognizing equal marital rights for gays and lesbians.

From this standard reading, the case’s holding appears to be directly contrary to the holding in

Hincks and its focus on protecting marital equality through the public policy exception. In this

part, however, I will, argue that despite Hyde’s clear anti-equality legacy in the context of

same-sex marriage, the case was actually decided on the basis of the same common law

constitutionalist equality reasoning later reflected in Hincks.

A. The Facts of Hyde v Hyde

Hyde v Hyde and Woodmansee was decided by Sir James Wilde (who later became

Lord Penzance) in 1866, in the English Court of Probate and Divorce. The plaintiff, John Hyde,

was born in England in 1833.67 In his teens, he joined a Mormon congregation in London and

63 When the case was decided, however, Lord Penzance had not yet been raised to the peerage, so it is an anachronism to refer to him as having decided Hyde in his capacity as Lord Penzance. However, this remains the convention. 64 Hyde, supra note 11 at 133. 65 As I will explain, the marriage in question was technically only potentially polygamous. In addition, as I will also discuss, while the case does not use the term ‘public policy,’ it has been broadly interpreted as a public policy case. 66 As I discuss infra in Part II.B. 67 Hyde’s date of birth is not given on the face of the judgment, but it is stated in the book he later published criticizing Mormonism. See John Hyde, Mormonism: Its Leaders and Designs (New York: WP Fetridge, 1857) [Hyde, Mormonism].

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was made a Mormon priest. He became engaged to a young Mormon woman named Lavinia

Hawkins, and relocated to Salt Lake City, Utah after Lavinia and her family moved there.68

The couple was married in 1853 – in a ceremony performed by Brigham Young, the President

of the Mormon church – and had several children together.69

Shortly after arriving in Salt Lake City, however, Hyde began to doubt the teachings

of Mormonism.70 He decided to break with the Mormon church, publicly renouncing

Mormonism and preaching against it. In response, the Mormon church excommunicated Hyde,

issued a statement that Lavinia was free to remarry, and forced Hyde to leave Salt Lake City.71

Hyde wrote to Lavinia, asking her to leave Utah and abandon Mormonism, but she refused.

Lavinia eventually married a man named Joseph Woodmansee, and had several more children

with him.72

In 1857, Hyde published a book criticizing the tenets and practice of Mormonism. In

particular, Hyde argued against the Mormon practice of polygamy (or more accurately,

polygyny, since the right to plural marriage was only available to men).73 Hyde returned to

live in England and began preaching at a dissenting church.74 He then brought a divorce

petition in England which was heard by the Divorce Court in 1866. The respondents in the

case were his wife Lavinia and her new husband, but neither appeared for the hearing.75 Hyde

68 Kathryn M Daynes, More Wives Than One: Transformation of the Mormon Marriage System, 1840-1910 (Urbana & Chicago: University of Illinois Press, 2001) at 82 [Daynes, More Wives than One]. 69 Hyde, supra note 11 at 130. 70 Ibid at 130. 71 Ibid at 131. 72 Ibid; Daynes, More Wives than One, supra note 68 at 82. 73 Hyde, Mormonism, supra note 67. 74 Hyde, supra note 11 at 130. 75 The issue of how the court had jurisdiction over the respondents was not addressed in Hyde, but presumably it was because at that time jurisdiction over a wife followed jurisdiction over a husband, so if Hyde was domiciled in England, his wife was taken to be domiciled there as well.

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argued that a divorce should be issued by the court on the grounds that his wife had committed

adultery with Woodmansee.

In deciding the dispute, Lord Penzance first employed the normal choice of law rule:

that the formal validity of a marriage is to be decided by the law of the place of celebration

(the lex celebratonis). In this case, the marriage was celebrated in Utah ‘according to the rites

and ceremonies of the Mormons.’76 At that time, Mormonism granted men the right (and

provided spiritual incentives) to take more than one wife;77 and polygamy was not yet illegal

in Utah.78 For this reason, John Hyde’s Mormon marriage was potentially polygamous – Hyde

was permitted to take additional wives, although he had not in practice exercised this right.

After considering the implications of recognizing a potentially polygamous marriage,

Lord Penzance determined that an English court could not exercise jurisdiction over such a

marriage for the purpose of granting a divorce. In what would become the definitive common

law statement of the definition of marriage, Lord Penzance held that ‘marriage, as understood

in Christendom, may for this purpose be defined as the voluntary union for life of one man and

one woman, to the exclusion of all others.’79 Since the Hyde’s potentially polygamous

marriage did not meet this requirement, the English court could not recognize it for the purpose

of granting a divorce.80 While Lord Penzance did not use the phrase ‘public policy’ to describe

76 Hyde, supra note 11 at 130. 77 While scholars have debated how many wives Brigham Young took, a recent study on this issue puts the number at 53: John G Turner, Brigham Young: Pioneer Prophet (Cambridge, MA: Belknap Press, 2012) at 136. 78 Lord Penzance describes it as ‘the common custom in Utah.’ Hyde, supra note 11 at 131. However, this understanding of Utah law was likely in error, as Falconbridge argues – it seems that Utah prohibited polygamous marriage when Hyde was married, and thus ‘[t]he true view may be that it was under the law of Utah a valid monogamous marriage.’ John Delatre Falconbridge, Essays on the Conflict of Laws, 2d ed (Toronto: Canada Law Book Co, 1954) at 777-778. 79 Hyde, supra note 11 at 133. 80 Ibid at 138. As various scholars have pointed out, however, it is unclear if this actually meant there was a remedy for Hyde; although my view is that it probably meant he was free to marry again in England as his marriage could not be recognized there.

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the problem with the Utah-formalized Mormon marriage, the case has been widely understood

to have been decided on public policy grounds.81

B. Hyde’s Anti-Equality Legacy Since Hyde was decided, Lord Penzance’s judgment in the case has been the subject of

a steady stream of criticism. The case has been critiqued for formalizing a Christian, religious

view of marriage in a supposedly liberal society;82 for initiating a problematic strand of overly

rigid common law jurisprudence that refused to recognize polygamous marriages for any

purpose;83 for relying on problematic mid-Victorian norms regarding sexual morality;84 and

for operating on the basis of racist, sexist, imperialist, and orientalist assumptions.85 But

perhaps the most trenchant critique of the case in contemporary legal doctrine is that the legal

definition of marriage established in Hyde – as ‘the voluntary union for life of one man and

one woman’ – has posed an immense barrier to reforming marriage to include equal rights for

81 Sebastian Poulter, ‘Hyde v Hyde – A Reappraisal’ (1976) 25:3 ICLQ 475 at 478 [Poutler, ‘A Reappraisal’]; but see WE Beckett, ‘The Recognition of Polygamous Marriages Under English Law’ (1932) 48 Law Q Rev 341 at 341, arguing that Hyde is not a public policy case. 82 As Poulter says, ‘Looking back now to the heyday of Victorian moralizing it is easy to see Lord Penzance’s judgment … as typical religious bigotry resting on inadequate knowledge and entirely devoid of any human sympathy for the particular individuals concerned.’ Poutler, ‘A Reappraisal,’ supra note 81 at 485-486. 83 See my discussion in infra Part II.D. 84 See e.g. Lucy Carroll, ‘Recognition of polygamous marriages in English matrimonial law: The statutory reversal of Hyde v Hyde in 1972’ (1984) 5:1 Institute of Muslim Minority Affairs 81 (describing Lord Penzance’s ‘outbursts of Victorian moral outrage’ in the case). Interestingly, the Victorians were preoccupied with polygamy; many leading literature figures of the period introduced polygamy themes and motifs in their writing, in what has been termed the ‘Mormon moment’ in Victorian literature. For example, Sir Arthur Conan Doyle’s first Sherlock Holmes mystery, A Study in Scarlet, had a notable polygamy theme. Other Victorian authors who wrote about Mormonism included Dickens, Robert Louis Stevenson, George Eliot, and Bram Stoker. For scholarly discussions of the Victorian fascination with Mormonism, see Scott Dransfield, ‘Charles Dickens and the Victorian “Mormon Moment”’ (2013) 17 Religion and the Arts 489; Sebastian Lecourt, ‘The Mormons, the Victorians, and the Idea of Greater Britain’ (2013) 56:1 Victorian Studies 85; Jenny Roth, Lori Chambers, & Dana Walsh, ‘“Your girls that you all love are mine already”: Dracula, Mormonism and New Women’s Degenerate Polygamy’ (2016) 12:2 Law, Culture and the Humanities 353. Polygamy and Mormonism in particular thus played an important role in the popular culture of Lord Penzance’s time. 85 See e.g. Zainab Batul Naqvi, ‘A contextualised historical account of changing judicial attitudes to polygamous marriage in the English courts’ (2017) 13:3 International Journal of Law in Context 408 [Naqvi, ‘Changing Attitudes’]; TC Hartley, ‘Polygamy and Social Policy’ (1969) 32 Mod L Rev 155.

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same-sex couples.86 For this reason, Hyde appears in contemporary legal imagination as a

fundamental barrier to legal equality. I will argue, however, that the case is an important

example of where common law constitutionalist rule of law reasoning about equality was used

in the public policy context.

C. The Equality Principle at Work in Hyde

As discussed above, the equality principle has three essential aspects: the rule of law

prohibits (1) the denial of equal rights and freedoms to the law’s subjects, (2) who are

discriminated against on the basis of some arbitrary characteristic; and (3) this ‘constitutional’

value is an unwritten and essential feature of legality in the common law tradition. As with

Hincks, we can see each of these three features at play in Lord Penzance’s reasons in Hyde.

Lord Penzance explains that in the Christian legal tradition,87 marriage is a contract

that creates a status.88 From this status flows a ‘variety of legal incidents during the lives of

the parties,’ including a range of mutual rights and obligations.89 These include obligations to

not commit adultery; to not commit bigamy; and to furnish remedies for violations of these

primary obligations.

But polygyny, Lord Penzance observes, removes many of these obligations for men:

men do not commit bigamy or adultery when they marry and have sexual relations with a

86 This obstacle has been both legal and political. For a legal example, in Canada, Halpern had to explicitly overrule Hyde. Halpern, supra note 48 at para 36. For a political example, in Malcolm Turnbull’s musings on his political evolution on the issue of gay marriage, he notes that Hyde was a major legal obstacle to reform. Malcolm Turnbull, ‘Reflections on Gay Marriage - Michael Kirby Lecture 2012’ (7 July 2012), online: < https://www.malcolmturnbull.com.au/media/reflections-on-gay-marriage-michael-kirby-lecture-2012>. The definition from Hyde has also frequently been cited by campaigners against marriage reform. See e.g. Coalition for Marriage, ‘Consultation Response’ (June 2012), online: <http://c4m.org.uk/downloads/consultationresponse.pdf>. 87 Although as Poutler explains, the use of the term ‘Christian’ was odd and inaccurate even at the time, as purely civil marriage was available in the UK at this time. Poutler, ‘A Reappraisal,’ supra note 81 at 480. The term was later understood to refer to the common law legal tradition. See Wilkinson, supra note 36 at para 11. 88 Hyde, supra note 11 at 133. 89 Ibid.

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second wife, because their right to take on multiple wives alters their monogamous conjugal

duties. By their very nature, polygynous relationships simply do not cognize husbands as

wronging wives when they engage in such conduct.90 These exemptions from the normal duties

of marriage, however, are only available to men (at least in the Mormon context under

examination in Hyde). Women were not permitted to take on additional husbands.91 Thus

polygynous relationships remove the standard obligations of marriage for men only, while

women’s legal obligations remain defined in much the same way that they would be in the

common law tradition.

Lord Penzance argues that this lop-sided approach means that a woman in a polygynous

relationship has a status that is nothing like a ‘Christian wife.’ Most significantly, her ‘social

equality’ with her husband is fundamentally denied; she is not legally understood to be ‘upon

the same level with the man under whose protection [she lives].’92 Sometimes this inequality

can even amount to a type of slavery.93

While Lord Penzance certainly uses religious and sexist language to describe women

(discussing a ‘Christian wife’ who is a member of the ‘weaker sex’ and who remains under the

‘protection’ of the husband),94 the legal problem he identifies with polygyny is clear: it takes

away the legal obligations of marriage for men while leaving them in place for women. In

90 Ibid at 135. 91 And, as John Hyde argued in his book on Mormonism, their sexual relationships remained strictly controlled. Hyde, Mormonism, supra note 67. 92 Hyde, supra note 11 at 134. 93 Ibid at 134. There is a long tradition of conceptualizing polygamy as ‘white slavery.’ See Margaret Denike, ‘The Racialization of White Man’s Polygamy’ (2010) 25:4 Hypatia 852 at 856 [Denike, ‘Racialization of White Man’s Polygamy’]. As Denike outlines, in the 1856 Republican platform in the US, polygamy and slavery were the ‘twin relics of barbarism’ that the party sought to eliminate. Ibid. However, there is some question as to whether as a historical matter, polygamous Mormon women were brutally oppressed; a recent book challenges this claim: see Laurel Thatcher Ulrich, A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870 (New York: Knoff, 2017). 94 Hyde, supra note 11 at 136, 135, 134.

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doing so, it fundamentally denies the equality of the parties – and the mutuality of rights and

obligations that marriage presupposes – on the basis of gender. As such, polygyny denies the

equal freedom of women. For this reason, it cannot be recognized by an English court, even

for the purpose of taking jurisdiction over a divorce.

In reaching this conclusion, Lord Penzance echoes an argument made by John Stuart

Mill in On Liberty, published seven years prior to Lord Penzance’s judgment in Hyde.

According to Mill, the problem with polygyny is that it constitutes a ‘rivetting [sic] of the

chains of one-half of the community, and an emancipation of the other from reciprocity of

obligation towards them.’95 That is, women in polygynous relationships remain bound by the

obligations of marriage while men are legally free to violate those obligations. For Mill, this

problematic denial of equal freedom meant that other countries ‘are not asked to recognize

such unions.’96

The source of Lord Penzance’s conclusion, though, is not an explicit reference to Mill

or to any other theorist, or to any positive legislation or written constitutional law; rather its

source is the fundamental logic of the common law. What Lord Penzance calls the ‘Christian’

tradition of marriage (but which has been understood by commentators to mean the common

law tradition more generally)97 prohibits recognizing a legal structure that would provide

different legal rights and obligations to men and women. It is this logic of the common law’s

approach to marriage that generates the conclusion that polygyny cannot be recognized by an

English court.

95 JS Mill, On Liberty, 2d ed (London: Parker & Sons, 1859) at 165 [Mill, On Liberty]. However, Mill argued for tolerance of polygamy in certain respects. See Bruce Baum, ‘Feminism, Liberalism and Cultural Pluralism: JS Mill on Mormon Polygyny’ (1997) 5:3 Journal of Political Philosophy 230. 96 Mill, On Liberty, supra note 95 at 165. 97 Poutler, ‘A Reappraisal,’ supra note 81 at 480.

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In deciding that he could not recognize a potentially polygynous marriage, Lord

Penzance’s approach closely tracks the common law constitutionalist’s equality principle.98

He identifies a situation in which the legal rights and duties accorded to persons are not equal

– in this case, men and women are afforded strikingly different marital rights. And he suggests

that this differential treatment is arbitrary – there seems to be no reason why men and women

should not be ‘upon the same level’ or ‘socially equal’ in the marital context. Polygyny thus

denies the equal freedom of persons on an arbitrary basis – according to gender – and therefore

cannot be recognized by a common law court, as a matter of the fundamental logic of the

common law tradition.99

Of course, this does not mean that Lord Penzance’s reasons are entirely consistent or

perfectly in accordance with the common law constitutionalist approach. As I mention above,

he uses religious and sexist language at several points, which suggests that his gender equality

rationale may not have been taken to its logical conclusion and that he may have been

influenced by illiberal, sacred reasons. And as Sebastian Poutler points out, Lord Penzance

elides the fact that men and women did not, in fact, have equal rights and obligations in

marriage in the mid-Victorian period – this was, of course, an era in which women’s

emancipation in the marital context was very much a work in progress.100 Nonetheless, it is

thus perhaps even more notable in light of these sexist and religious assumptions that Lord

Penzance’s reasoning is generated by reference to the inequality in the allocation of rights and

98 While some other scholars have noted that there are equality-related themes in Lord Penzance’s judgment (see e.g. Poutler, ‘A Reappraisal,’ supra note 81), I am the first to have connected those aspects of the judgment to the common law constitutionalist approach in general and the equality principle in particular. 99 There is of course a substantial contemporary literature on the equality problems introduced by polygyny. For a survey of this evidence, see Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 [BC Polygamy Reference]. 100 Poutler, ‘A Reappraisal,’ supra note 81; Sebastian Poulter, ‘The Definition of Marriage in English Law’ (1979) 42:4 Mod L Rev 409.

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obligations in polygynous legal relationships. The arbitrariness of the way in which men’s and

women’s legal rights are constructed in such relationships clearly persuades him that such a

denial of the equal freedom of persons cannot be cognized by the common law at all.

D. The Equality Critique of the Hyde Rule in Subsequent Polygamy Cases

While I may have made the case that Hyde itself was decided on the basis of the gender

equality principle, a potential problem with this reading emerges from the subsequent

jurisprudence interpreting Hyde. After Hyde was handed down, it was followed in a wide range

of cases in England and in Canada; when confronted with foreign polygamous marriages,

courts generally refused to recognize these marriages for any purpose.101 But courts also began

to question whether all aspects and incidents of foreign polygamous marriage should be

refused recognition.102 Refusing to recognize marriages for the purposes of granting a divorce

creates a situation where a couple is married in one jurisdiction but without a recognized

marriage in the second jurisdiction, leaving their legal status unclear. For this reason, and

because of other difficulties that a blanket non-recognition rule created, courts began to

question the Hyde rule, and foreign polygamous marriages came to be recognized in a range

of circumstances.103

101 From England, see e.g. Ali v Ali, [1968] P 564 (Probate, Divorce & Admiralty Division); Ohochuku v Ohockuku, [1960] 1 WLR 183 (Probate, Divorce & Admiralty Division) (won’t take jurisdiction over potentially polygamous marriage); Sowa v Sowa, [1961] P 70 (CA) [Sowa] (for a discussion see PRH Webb, ‘Sowa v Sowa: Polygamy and the Unchanging Wind’ (1961) 24 Mod L Rev 497; PRH Webb, ‘Polygamous Marriages Again’ (1961) 24 Mod L Rev 183; OM Stone, ‘Sowa v. Sowa: Maintenance of Family Dependants’ (1961) 24 Mod L Rev 500); Risk v Risk, [1951] P 50 (Probate, Divorce & Admiralty Division) (won’t take jurisdiction over potentially polygamous marriage); Starkowski (Otherwise Urbanski) Appellant v Attorney-General and Others Respondent, [1954] AC 155 (HL (Eng)). On the Canadian side, see e.g. Lim v Lim, [1948] 2 DLR 353, 1 WWR 298 (BC SC); Yew v Attorney-General of British Columbia (1923), 33 BCR 109, [1924] 1 DLR 1166 (CA). 102 See e.g. Sowa, supra note 101 (expressing regret that the court was bound by Hyde). Bartholomew has called the issue of when to recognize polygamous marriages a ‘classic problem’ in private international law. GW Bartholomew, ‘Recognition of Polygamous Marriages in Canada’ (1961) 10 ICLQ 305 at 305. 103 See e.g. PRH Webb, ‘The Continued Erosion of the Hyde Rule’ (1965) 28 Mod L Rev 109. The Hyde rule was questioned or eroded in a wide range of cases. From England, see e.g.: Re Sinha Peerage Claim, [1946] 1 All ER 348; Parkasho v Singh, [1968] P 233; R v Sagoo, [1975] QB 885 (CA); Din v National Assistance Board, [1967] 2 QB 213; Official Solicitor to the Senior Courts v Yemoh, [2010] EWHC 3727 (Ch); Hashmi v Hashmi,

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Interestingly, the ground on which many of these cases rejected Hyde was that the rule

it articulated itself discriminates against women.104 For example, take Azam v Jan, an Alberta

case from 2013.105 In this case, the court was tasked with deciding whether to recognize a

Pakistani marriage between a man and his second wife for the purpose of obtaining a divorce

in Alberta.106 The husband argued that this second marriage, which occurred under Pakistani

law, could not be recognized by the Canadian court on public policy grounds, and that therefore

no divorce could be issued (and so the wife was not entitled to any remedy under Canadian

law).107 Under the rule in Hyde, the court would not have been able to recognize the Pakistani

marriage for any purpose as a matter of public policy, since this was a polygynous marriage in

which the husband had taken multiple wives (and in which the wives had no legal right under

Pakistani law to take additional husbands). The court in Azam, however, decided to disregard

the rule in Hyde on the ground that it would violate public policy not to recognize the Pakistani

marriage for the purpose of issuing a declaration that the marriage was void.108

The key issue, the court found, was that it would be discriminatory toward women in

general (and to the second wife in Azam in particular) if the rule in Hyde were followed. If the

[1972] Fam 36; Cheni v Cheni, [1965] P 85 (Probate, Divorce & Admiralty Division); Nabi v Heaton, [1981] 1 WLR 1052 (Ch); Mohamed v Knott, [1968] 2 WLR 1446, [1969] 1 QB 1 (Div Ct) (see discussion in supra Chapter 3); Indyka v Indyka, [1969] 1 AC 33 (HL (Eng)); Lee v Lau, [1967] P 14 (Probate, Divorce & Admiralty Division). From Canada, see e.g.: Re Hassan and Hassan, [1976] OJ No 2131; Sara v Sara, [1962] BCJ No 106 (BC SC); Connolly v Wollrich, [1867] QJ No 1; Re Leong Ba Chai, [1953] BCJ No 89 (BC CA); Kaur v Ginder, [1958] BCJ No 123 (BC SC); Re Quon, [1969] AJ No 70 (AB SC). 104 See e.g. Shahnaz v Rizwan, [1965] 1 QB 390 at 401 (concern about leaving women without a remedy) (see discussion in PRH Webb, ‘Polygamy and the Eddying Winds’ (1965) 14 ICLQ 273); Baindail (Otherwise Lawson) v Baindail, [1946] P 122 (CA) (similar issue); Srini Vasan (Otherwise Clayton) v Srini Vasan, [1946] P 67 (Probate, Divorce & Admiralty Division) (similar issue). 105 Azam v Jan, 2013 ABQB 301 [Azam]. 106 While the court uses the language of whether to take ‘jurisdiction’ over the case, it remains a choice of law matter. The question is whether the parties’ relationship should be cognized under Pakistani law or under Canadian law, and not whether there is a real and substantial connection between the court and the parties. 107 Presumably so his wife was not entitled to relief at marital breakdown. 108 Azam, supra note 105 at para 44. The court distinguishes between taking jurisdiction over a marriage for the purpose of declaring it void and for the purpose of issuing a divorce. However, I am not sure why this distinction is justified on the reasons given in the case.

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court did not recognize the second marriage under Pakistani law for the purposes of issuing a

declaration that the marriage was void in Canada, the second wife would be left without a

remedy; she would remain in a ‘limping marriage’ that she was unable to exit. The court

recognized that ‘the traditional arguments against taking jurisdiction to grant a divorce or an

annulment of a valid foreign polygamous marriage on public policy grounds’ are ‘the

“demeaning” impact polygamous marriages have on women’s equality.’ However, the court

argued that ‘[o]ne would have thought that denying any remedy for such marriages found to

have been legally made in a foreign jurisdiction would be equally problematic from a public

policy perspective and just as demeaning to women’s equality.’109 The court also bolstered this

conclusion with a paean to Canadian multiculturalism and the need ‘meet the needs of all

Canadians including both citizen and permanent resident.’ Not recognizing such marriages

‘would leave parties without recourse and it would invariably exclude immigrant families from

rights accorded other Canadians when marriages, however forged, break down.’110

In other words, the court in Azam suggests that adhering to the principle of equality

demands that they recognize foreign law permitting polygynous marriage in order to take

jurisdiction over the polygynous marriage at issue in the case, so that all women – including

immigrant women, and others who entered into marriages in a foreign jurisdiction – are able

to obtain a remedy on marital breakdown.111 How, then, can my gender equality-based reading

of Hyde be correct, if subsequent cases have criticized it from the perspective of gender

equality?

109 Ibid at para 41. 110 Ibid at para 44. 111 While the court says that it is gender equality that is doing the work, I wonder if it is not really discrimination on the basis of nationality or religion that they are concerned about.

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The key to understanding how both Hyde and the cases subsequent to Hyde can be

thought to have been decided on the basis of the gender equality principle is to acknowledge

that the matter of how courts should address foreign polygynous marriage (and indeed, the

legality of polygamy/polygyny more generally) is an issue that genuinely divides feminist

commentators.112 As Angela Campbell has argued, ‘It is impossible to reduce the literature on

[polygamy] to a general, blanket statement in regard to the social aspects of polygamous life

for women: polygamy is neither entirely “good” nor is it entirely “bad” for women. The social

implications of plural marriage are far more intricate than this.’113 Is it more problematic to

recognize a legal institution that provides fundamentally different rights to men and women

than to not recognize such an institution, when non-recognition would leave women without a

remedy? It is difficult to say which position is more consistent with a rule of law perspective

that seeks to protect individuals from arbitrary denials of equal freedom.

But is it a problem for my rule of law theory of public policy if the equality principle

generates two, possibly contradictory, positions regarding the recognition of foreign

polygynous marriages? In my view, this is not a problem. The thought is not that I offer a

solution to every public policy case in advance, or that all cases applying the rule of law

approach I identify will come out the same way. Rather, the approach I offer is meant to help

in two ways. First, it helps us articulate the proper question to ask in the public policy context

– namely, whether the foreign law under consideration, in the particular factual context under

examination, would violate the forum’s conception of the rule of law as it has been understood

in the common law tradition. And, second, it helps us identify the proper sort of reason to use

112 For a survey of perspectives on this issue, see e.g. Gillian Calder & Lori Beaman, eds, Polygamy’s Rights and Wrongs (Vancouver: UBC Press, 2014); BC Polygamy Reference, supra note 99. 113 Angela Campbell et al, ‘Polygamy in Canada: Social implications for women and children,’ Status of Women’s Office (2005), online: < http://publications.gc.ca/collections/Collection/SW21-132-2005E.pdf>.

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when answering that question. The interpretive approach I offer is necessarily abstract and

admits of multiple conclusions. It is only when one adopts a rule of law perspective that is

focused on determinacy as the overriding objective of the rule of law that this more open-

textured, reasons-based approach is problematic.

E. The Gender Equality Principle at Work in Other Types of Public Policy Cases

Hyde might be the best-known public policy case that reflects the gender equality

principle. However, in addition to the polygamy cases, we can also observe the gender equality

principle at work in a range of other cases. In this sub-part, I want to highlight two other

contexts in which this principle has been frequently invoked when examining foreign laws as

a matter of public policy: the unequal division of assets upon marital breakdown, and unilateral

private divorce.

a. Division of Assets

Public policy has been invoked to refuse to apply foreign law that allocates the division

of assets between men and women at marital breakdown in a dramatically unequal way. A

well-known case that exemplifies this use of the exception is Vladi v Vladi, a Nova Scotian

case from 1987.114 Mr. and Mrs. Vladi were Iranian nationals who married in West Germany

(as it was then) in 1973, where they became landed immigrants. They then moved to Nova

Scotia where they became Canadian citizens, while maintaining a residence in West Germany.

The marriage broke down in 1983, and the husband obtained a divorce in West Germany in

1985.

The issue before the Nova Scotia court was the division of matrimonial assets. The

Matrimonial Property Act of Nova Scotia directed the court to apply the law of the place where

114 [1987] NSJ No 204 [Vladi]. The case is discussed in major treatises: see e.g. J-G Castel, Canadian Conflict of Laws, 4th ed (Toronto and Vancouver: Butterworths, 1997) at 118, 173 [Castel, Canadian Conflict of Laws].

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both parties had their last common habitual residence.115 In this case, that was West Germany.

However, West German law on the division of assets referred in turn to Iranian law (through

the principle of renvoi).116 Under Iranian law, Mrs. Vladi – because of her gender – would only

have been entitled to minimal support and a nominal award of assets (a mahr or ‘morning-

gift’).117 Iranian law would have entitled Mrs. Vladi to no other claim. This framework was

far from the equal division of assets provided under West German or Nova Scotia law, in which

the gender of the parties would make no difference to the outcome of the case. While normal

statutory choice of law rules seemed to require the court to apply Iranian law (through West

German law), the Nova Scotia court held that the public policy exception could not

countenance this result. Instead, the court rejected the statutory renvoi from West German to

Iranian law, and applied West German law instead.118

Vladi was not an orthodox use of the public policy exception in one sense (typically it

is not used to refuse renvoi under another state’s law; instead, the law of the forum itself would

normally apply).119 Nevertheless, it is representative of other cases where dramatically unequal

division of assets at marital breakdown along gender lines has been used to reject the

application of the discriminatory law.120 As other cases have made clear, however, the unequal

division of assets under foreign law must be truly significant – the foreign law must grant only

a nominal or non-existent award to one party for public policy to be invoked. A mere difference

between what would have been awarded in the forum state (be it Canada or England) and in

115 Vladi, supra note 114. 116 Ibid. 117 Ibid. 118 Ibid. 119 The court felt it needed to refer to Germany’s external law as a statutory matter, but Castel says the reasoning requiring the use of renvoi in the case was ‘erroneous.’ Castel, Canadian Conflict of Laws, supra note 114 at 118. 120 See Marzara v Marzara, 2011 BCSC 408 (2011); Kaddoura v Hammoud, [1998] OJ No 5054; Delvarani v Delvarani, 2012 BCSC 162; Agbaje v Agbaje, [2010] UKSC 13.

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the foreign state is insufficient.121 A mahr is in principle enforceable;122 it is only when the

division of assets is extremely inequitable that it will be disregarded.123

This approach, however, is open to an obvious objection: Why do Canadian and

English courts find that some inequality along gender lines in the division of assets at marital

breakdown is acceptable, but an extreme inequality is not acceptable? Under my rule of law

approach to the exception, wouldn’t any arbitrary difference in the legal treatment of men and

women violate the equality principle?

There are two possible responses one could make to this objection. First, one could

argue that a difference in treatment between men and women in the division of assets at marital

breakdown is not necessarily arbitrary. In a culturally diverse world, different communities

may have different reasons for making at least some legal distinctions between how men and

women are treated. It is only when there is a complete or practically absolute denial of the right

of one gender to assets on marital breakdown that it is clear that the foreign law is arbitrary.

As a Canadian court upholding an unequal division of assets under a mahr observed, ‘Our law

continues to evolve in a manner which acknowledges cultural diversity. Attempts are made to

be respectful of traditions which define various groups who live in a multi-cultural

community.’124 In light of this cultural diversity, courts may want to be certain that foreign law

is arbitrary and discriminatory before deciding that it violates public policy.125

121 See e.g. Dashtarai v Shahrestani, [2006] OJ No 5367 (holding that an Iranian division of assets should be recognized, even though the wife got much less). 122 See e.g. Ghaznavi v Kashif-Ul-Haque, 2011 ONSC 4062; Khanis v Noormohamed, 2011 ONCA 127; Nasin v Nasin, 2008 ABQB 219. 123 Nathoo v Nathoo, [1996] BCJ No 2720 (in which an unequal division of assets under a mahr was upheld). 124 Ibid. 125 There may also be unwillingness to ascribe discriminatory motives to foreign government. As one scholar says, ‘Since our courts are reluctant to ascribe bad faith to foreign governments, the discrimination must be obvious on the face of the legislation.’ PE Nygh, Conflict of Laws in Australia, 5th ed (Sydney: Butterworths, 1991) at 252 (citing to Settebello Ltd v Banco Totta and Acores).

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Second, we can also meet this objection by returning to Allan’s and Dyzenhaus’

writings on the rule of law. Their claim is not that any difference in the legal treatment of

persons would rise to the level of a rule of law violation that would require a court to either

refuse to apply the law or to interpret it in such a way that is not discriminatory. Rather,

arbitrarily different treatment must be serious and substantial, and incapable of justification

through any conception of the common good, in order for there to be a rule of law violation.126

While this may involve a difficult task of line drawing in assessing what degree of

discrimination rises to the level of a rule of law violation, the approach that courts have taken

in the mahr context fits well with Allan’s and Dyzenhaus’ accounts.

b. Unilateral Private Divorce127

The gender equality principle has also arguably motivated courts to not recognize

foreign law in the context of talaq divorce. In numerous sects of Islam, men retain the right to

unilaterally divorce their wives by uttering the word ‘talaq’ three times.128 This right is not

available to women, although they may be able to seek a divorce through other means. Talaq

divorce is recognized in many states as a legitimate procedure by which to end a marriage,129

although different legal systems may require different procedures by which the talaq can be

126 See supra Chapter 2, Part IV. This is particularly true in a context like public policy, where Dyzenhaus’ interpretive approach is not available, and the only way of dealing with a rule of law violation is to refuse to apply foreign law. 127 Normally divorce is a recognition issue (which is outside the scope of this dissertation) because it is about a foreign judicial procedure. But this is about private action taken under foreign law, not a court’s decision, so it can be characterized as a choice of law matter rather than a recognition matter. 128 See Muhammad Munir, ‘Triple Talaq in One Session: An Analysis of the Opinions of Classical, Medieval, and Modern Muslim Jurists, under Islamic law’ (2013) 27 Arab L Q 29; Nehaluddin Ahmad, ‘A Critical Appraisal of “Triple Divorce” in Islamic Law’ (2009) 23:1 International Journal of Law, Policy and the Family 53. 129 For a brief survey, see Muhammad Munir, ‘Reforms in triple talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change’ [2013] International Review of Law.

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recognized, with different degrees of judicial supervision, participation, documentation, and

witnessing required.130

However, Canadian and English courts have frequently refused to recognize bare talaq

divorce – that is, talaq outside of any supervised judicial or other public process. Courts have

sometimes couched their objections to such divorces in procedural fairness terms (or as a

denial of natural justice),131 as a unilateral divorce will typically lack important requirements

of procedural fairness.132 But courts have also refused to recognize talaq as a matter of public

policy on the basis of the general equality principle, since that talaq is a legal right that is

granted to men and denied to women.133 This is another clear example of where foreign law

that arbitrarily denies equal rights to men and women is found to violate public policy.

However, this line of cases is open to an objection similar to the one posed in the

unequal division of assets contexts: why have courts held that a judicially or publicly

supervised talaq is not a violation of public policy, while a non-publicly supervised talaq is a

violation?134 Presumably the fact that talaq is a legal right only available to men should be

130 For one survey, see Rubya Mehdi, Werner Menski, & Jørgen S Nielsen, eds, Interpreting divorce laws in Islam (Copenhagen: Djøf Publishers, 2012) [Mehdi et al, Interpreting Divorce Laws]. 131 English cases include: Chaudhary v Chaudhary, [1985] Fam 19 (CA); A v L, [2010] EWHC 460 (Fam); Radwan v Radwan, [1973] Fam 35. Canadian cases include: Amin v Canada (Minister of Citizenship and Immigration), 2008 FC 168); Choudhary v Canada (Minister of Citizenship and Immigration), [2013] IADD No 502; Baig v Canada (Minister of Citizenship and Immigration), [2013] IADD No 658; Hashmi v Canada (Minister of Citizenship and Immigration), [2012] IADD No 1415; Sarkar v Canada (Minister of Citizenship and Immigration), [2011] IADD No 2461; Jesow v Canada (Minister of Public Safety and Emergency Preparedness), [2010] IADD No 3332; Butt v Canada (Minister of Citizenship and Immigration), [2010] IADD No 516; Jafri v Canada (Minister of Citizenship and Immigration), [2009] IADD No 3071; Popal v Canada (Minister of Citizenship and Immigration), [2009] IADD No 2407. 132 For cases reaching this conclusion, see Qureshi v Qureshi, [1971] 2 WLR 518 (Probate, Divorce & Admiralty Division); Quazi v Quazi, [1979] 3 WLR 833 (HL (Eng)); R v Hammersmith Superintendent Registrar of Marriages [1917] 1 KB 634 [R v Hammersmith]. For a helpful survey of the Canadian case law, see Pascale Fournier, Aida Setrakian, & Pascal McDougall, ‘No-Fault Talaq: Islamic Divorce in Canadian Immigration and Family Law’ in Mehdi et al, Interpreting Divorce Laws, supra note 130, 235 [Fournier et al, ‘No-Fault Talaq’]. 133 See John Murphy, International Dimensions in Family Law (Manchester: Manchester University Press, 2005) at 137. 134 For an account of the English approach, see Collins, Conflict of Laws, supra note 6 at 888-898. For a description of the state of the law in Canada, see Fournier et al, ‘No-Fault Talaq,’ supra note 132. As Fournier et al describe, the emphasis is typically on whether the home country’s registration procedures were followed.

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sufficiently problematic in both context, from the point of view of my rule of law account of

public policy. Thus why does the public supervision make a difference in these cases?

Perhaps the best way to understand how public supervision could make a difference in

these cases is that it is thought to mitigate the gender inequality created by a bare talaq. If a

court or public body must supervise the exercise of a talaq divorce, women will be granted at

least some procedural rights that would otherwise be denied to them. This blunts the unilateral

aspect of the talaq, making it (at least to some extent) a mutual endeavour. And most

importantly from our perspective, it denies the fundamental arbitrariness of the talaq, which

grants one party substantially greater rights within the marriage solely on the basis of gender,

by equalizing the rights granted to the parties (again, at least to some extent).135

F. Judicial Bias and the Missing Gender Cases This part has sought to establish that there is an important connection between foreign

law that discriminates on the basis of gender and the use of public policy in English and

Canadian courts. But before concluding my analysis, I want to consider certain concerns that

could be raised about the discussion above.

Numerous scholars have argued that many public policy cases that seem to be

motivated by the need to protect the equality of men and woman are actually generated by

more problematic ideological assumptions and prejudices. As is evident in my survey of the

case law above, many of the instances in which the equality principle has operated are contexts

where English and Canadian courts have considered whether to apply foreign law that is

influenced or constituted by religious norms – most commonly Islamic family law. Scholars

have questioned, however, whether these ‘encounters’ between common law courts and

135 Going forward, after this dissertation establishes the centrality of gender equality to the public policy exception, courts may be emboldened to reject talaq in more circumstances.

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Islamic law are reliably motivated by a real concern for gender equality. For example, in her

extensive work on the subject, Pascale Fournier has argued that common law courts respond

to Islamic law according to ideological assumptions rather than consistent legal principles.136

Likewise, Margaret Denike, Zainab Naqvi, and others have argued that common law courts

have condemned practices like polygamy on the basis of racist, sexist, orientalist, and

imperialist assumptions and ideologies; the desire for gender equality has been little more than

a front for other, much more problematic, ideological motivations.137 These scholarly critiques

of the public policy jurisprudence directly call into question my claim that it is the gender

equality principle that operates to refuse recognition to foreign laws that discriminate on the

basis of gender.

A second possible objection is whether gender equality has sufficiently influenced the

public policy jurisprudence, as there seem to be many other instances in which the equality

principle could have been invoked in the face of discriminatory foreign laws but was not. For

example, no recorded public policy case from England or Canada ever challenged the legal

doctrine of coverture, which clearly denied the legal equality of men and women.138 Likewise,

public policy has never been used to challenge circumstances (both past and present) when

women have been denied the right to own property or to enter into contracts; or where the law

fails to prohibit marital rape (either through criminal law or tort law). What can explain these

‘missing’ public policy cases? And does the fact that public policy has never been used to

136 See e.g. Pascale Fournier, Muslim Marriage in Western Courts: Lost in Transplantation (Surrey: Ashgate Publishing, 2010); Pascale Fournier, ‘Flirting with God in Western Secular Courts: Mahr in the West’ (2009) Intl JL Pol’y & Fam. 137 See e.g. Denike, ‘Racialization of White Man’s Polygamy,’ supra note 93; Naqvi, ‘Changing Attitudes,’ supra note 85. 138 For a survey of the history of coverture, Tim Stretton & Krista J Kesselring, eds, Married women and the law: Coverture in England and the common law world (Montreal & Kingston: McGill-Queen’s University Press, 2013).

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refuse to apply foreign law that permits these fundamental denials of equality call my account

into question?

These are serious and important objections, and I do not want to adopt a Panglossian

approach to this complex area of the law. It is clearly true that judges may come to the public

policy stage of the choice of law analysis with numerous biases and problematic assumptions

about the way women are treated in other jurisdictions. It is also clearly true that common law

courts have often failed to address the ways the common law itself has defined rights for men

and women in a discriminatory manner. In addition, I accept that the public policy exception

is likely to lag further behind other equality-related developments in the common law; on my

common law constitutionalist theory of the exception, a principle is likely to be identified by

a court as a core public policy value only after it has already been widely accepted by the

common law more generally. But in these ways, public policy is much like any other area of

the law, where unexamined biases may often play a role in judicial reasoning, and where the

law’s inherent normative principles may take several generations before they are fully

instantiated in positive law.

Nevertheless, however imperfect the reasons or the motivations in the judgments I

point to may be, they still indicate that judges have established a consistent and clear principle

that foreign law that denies the equality of men and women cannot be applied by common law

courts as a matter of public policy. Moreover, by identifying this important strand of

jurisprudence in this dissertation, parties will more readily be able to invoke public policy in

the face of discriminatory foreign law going forward. And common law courts will be better

situated to more consistently ensure that any foreign law that they apply through choice of law

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rules complies with the gender equality principle – and that other, more problematic, motives

are excluded.

Part III: Chetti v Chetti and Discrimination on the Basis of Race

In continuing my exploration of whether the equality principle is employed by courts

when examining foreign law on public policy grounds, this part will consider the connection

between the public policy exception and foreign laws that discriminate on the basis of race.

The most well-known public policy case on racial discrimination is Oppenheimer v

Cattermole, an influential UK House of Lords case from 1976.139 When considering whether

a Nazi decree stripping property and citizenship from German Jews would be recognized in

Britain, as a matter of public policy, Lord Cross adopted the following position:

[W]hat we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognize it as a law at all.140

This powerful indictment of Nazi law has made Oppenheimer the leading public policy case

on racially discriminatory foreign law (and indeed, perhaps the leading public policy case on

any issue). Oppenheimer is cited frequently by courts and scholars for the holding that racially

discriminatory foreign laws violate public policy.141

139 Oppenheimer, supra note 7. This issue arose because Oppenheimer sought to be recognized as a dual German-British citizen for tax purposes; and the question of whether he was a German national was to be decided by German law. While the 1941 citizenship stripping law had been declared void ab initio by a German court in 1968, this had no retrospective effect. Thus the court had to consider the effect of this Nazi law. The House of Lords did not formally reach the issue of whether the German law should be recognized as a matter of public policy, because they remanded the case on a conceptually prior legal issue. 140 Ibid at 277-278 (emphasis added). 141 See e.g. Mills, Dimensions, supra note 7 at 221 (describing the case as ‘perhaps the prototypical case for the application of public policy’) [Mills, ‘Dimensions of Public Policy’]; Kuwait Airways Corporation v Iraqi Airways Company, [2002] UKHL 19 at para 18 (calling it the ‘leading’ public policy case) [Kuwait Airways]. For scholarly discussions of Oppenheimer, see e.g. JG Merrills, ‘Oppenheimer v Cattermole – The Curtain Falls’ (1975) 24 ICLQ 617; JG Merrills, ‘One Nationality or Two? The Strange Case of Oppenheimer v Cattermole’

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Yet the judicial and scholarly focus on Oppenheimer may have obscured a long-

standing public policy jurisprudence on racially discriminatory foreign laws that dates back to

the end of the nineteenth century.142 Oppenheimer’s emphasis on ‘human rights’ may have

given scholars the misleading impression that it is only after the emergence of written human

rights instruments in the decades following the Second World War that public policy was used

by courts to protect fundamental equality rights.143

In this part, I show that the use of the public policy exception to protect equality rights

in the context of racial discrimination is, in fact, a long-established principle in the common

law. Rather than following the conventional focus on Oppenheimer, I turn to an earlier

example of this tradition in a 1908 case called Chetti v Chetti to illustrate the roots of this

principle. Chetti has been the subject of analysis by several leading scholars including Dicey,

but these scholars have missed, I argue, a significant aspect of the court’s reasoning. In my

view, the case should be understood as an example of the equality principle at work. I then

discuss a range of other cases in which the equality principle was invoked in the face of racially

discriminatory foreign laws. Drawing upon this jurisprudence, I argue that the connection

between public policy and racist foreign laws is more substantial and deep-rooted than the

traditional focus on Oppenheimer would suggest. Moreover, by tracing this line of cases to its

(1974) 23:1 ICLQ 143; Aron Owen, ‘References to the Holocaust in English Law Reports’ (1992-1994) 33 Jewish Historical Studies 239 at 241. 142 There is also a second reason for avoiding focusing on Oppenheimer: recently the case has come to be understood by scholars to be about the applicability of international law generally as part of public policy. See e.g. Mills, Dimensions, supra note 7 at 221 (assimilating the case to the category of public policy cases where ‘courts have refused to apply a foreign law where it is viewed as contrary to international law,’ a category I discuss at length in Chapter 5 infra); Li-ann Thio, ‘English Public Policy, The Act of State Doctrine and Flagrant Violations of Fundamental International Law: Kuwait Airways Corp v Iraqi Airways Co (2002)’ (2003) 18 Conn J Int’l L 585. 143 In Kuwait Airways, the judges discuss at length whether public policy addresses issues that go beyond the protection of fundamental human rights under international law. This suggests that it is the existence of international human rights instruments that has generated the equality line of jurisprudence in the public policy context, and not the fundamental values of the common law itself.

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pre-Oppenheimer source, we can see how it is best understood as generated by the common

law’s internal principles of legality, rather than modern, written instantiations of human rights

law.

A. The Facts of Chetti v Chetti

Chetti v Chetti was decided by the Probate, Divorce, and Admiralty Division of the

English High Court in 1908. The case concerned an Indian man and an English woman, who

married in London, England in 1890. The man, Mr. Chetti, was domiciled in India when the

marriage took place.144 Two weeks after the marriage, Mrs. Chetti (as she became after the

marriage) had a child; and within a month of the child’s birth, Mr. Chetti returned permanently

to India, and the couple never again cohabitated. The couple continued to communicate for

several years after Mr. Chetti returned to India, and he initially provided some financial support

to Mrs. Chetti; but by 1894, it was clear that Mr. Chetti had deserted Mrs. Chetti.145

Several years later, when Mr. Chetti returned to England on a trip, Mrs. Chetti brought

a petition in English court asking for a divorce on grounds of desertion. In response, Mr. Chetti

claimed that the couple had never been married, and so no divorce could be issued.146

(Although it was not addressed in the case, this was presumably because he didn’t want to be

liable to Mrs. Chetti and their child for support and maintenance.)

Mr. Chetti’s argument relied on the standard choice of law rules governing marriage.147

While the formal validity of a marriage is typically governed by the lex loci celebrationis – the

law of the place of celebration – the capacity of parties to marry is typically governed by the

law of the parties’ domiciles. Mr. Chetti had remained domiciled in India throughout the course

144 Chetti, supra note 12 at 68. 145 As the court found. Ibid at 72. 146 This of course mirrors the argument made by the defendant in the Hincks case discussed above. 147 Chetti, supra note 12 at 68.

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of his relationship with Mrs. Chetti. And according to Mr. Chetti’s account of Indian law at

the time, Indian law did not permit him to marry Mrs. Chetti.

Mr. Chetti was Hindu and a member of the Vaisya caste, and under Indian law, a

member of Mr. Chetti’s caste was prohibited from marrying any woman who was not of his

own caste.148 Since Mrs. Chetti was a Christian born in England, and was not born into the

Indian Hindu caste system at all, she was not a member of Mr. Chetti’s caste. Thus, Mr. Chetti

argued, while his marriage to Mrs. Chetti in England may have been formally valid according

to the law of England, he did not have the capacity to marry Mrs. Chetti. He therefore argued

that he and Mrs. Chetti had never been legally married at all.

B. The Standard Reading of the Holding in Chetti

The judgment in Chetti was handed down by Sir John Gorell Barnes, President of the

Divorce Court, in one of the last decisions of his judicial career, before he was made chair of

the Royal Commission on Divorce and Matrimonial Causes.149 In his reasons, Lord Gorell

rejected Mr. Chetti’s argument. He questioned whether Mr. Chetti was truly bound by the

requirement that he not marry outside of his caste,150 and whether this was in fact the state of

the law in India.151

But in his judgment, Lord Gorell did not simply rely on these findings (which would

have been sufficient on their own to reject Mr. Chetti’s legal argument). He went further,

holding that even if Indian law governing its domiciliaries when they are abroad was binding

in the way that Mr. Chetti had argued, and even if this law truly would have prohibited Mr.

148 Ibid at 73. 149 JEG De Montmorency, John Gorell Barnes, First Lord Gorell (1848-1913): A Memoir (London: J Murray, 1920) at 98. 150 Chetti, supra note 12 at 75-76. 151 Ibid at 80-81.

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Chetti from marrying outside of his caste, this Indian law could not be binding in England.152

Although Lord Gorell does not use the term ‘public policy’ when refusing to apply Indian law,

and while his reasons are somewhat muddled, the case has been understood by scholars such

as Dicey to be an example of the public policy exception at work.153

In a comment on Chetti shortly after the case was handed down,154 Dicey argues that

the best explanation of the result reached in the case is that Lord Gorell applied ‘the well-

known exception’ to the general rule that capacity to marry is established by the law of the

domicile: ‘that a marriage celebrated in England is not invalid on account of any incapacity

which though imposed by the law of the domicil of both or of either of the parties, is of a kind

to which our Courts refuse recognition.’155 In other words, Dicey is saying there is a public

policy exception to the normal rule that capacity to marry is governed by the law of the parties’

domicile(s).156

Dicey argues that the Indian prohibition on marriage outside of one’s caste considered

in Chetti effectively constituted a prohibition on interracial marriage.157 And such a

152 Ibid at 87. 153 See e.g. Collins, Conflict of Laws, supra note 6 at 827 n 14, 829; Otto Kahn-Freund, ‘Reflections on Public Policy in the English Conflict of Laws’ (1953) 39 Transactions of the Grotius Society 39 at 56 [Kahn-Freund, ‘Reflections’]. But see Clarkson & Hill, supra note 5 at 379, arguing that Chetti is not a public policy case and pointing to dicta in Sottomayer that calls into question the challenge of using public policy altogether. As Dicey argues in his comment on Chetti, it is certainly difficult to understand exactly what is being decided in both of these cases, as there is broad language that questions both the normal rule that capacity is defined by the domicile and how public policy is meant to be used. AV Dicey, ‘Chetti v Chetti’ (1909) 25 Law Q Rev 202 [Dicey, ‘Chetti’]. But public policy has been the lens through which most commentators have made sense of the case. 154 Dicey, ‘Chetti,’ supra note 153. Dicey says that his gloss on the case isn’t reflected precisely in Lord Gorell’s reasons, because Gorell didn’t couch his analysis as an exception, and instead called into doubt the entirety of the normal rule that the capacity to contract is established by the law of the domicile. 155 Ibid at 202 (emphasis added). 156 Although note that Dicey does not use the phrase ‘public policy’ in his work. However this is now explicitly how this exception is understood in Collins, Conflict of Laws, supra note 6 at 827 n 14, 829. 157 Dicey, ‘Chetti,’ supra note 153 at 202 (citing to the part of his treatise that deals with foreign prohibitions on interracial marriage). For support for this conclusion, see K v A, [2014] EWHC 3850 (Fam) [K v A]; BA Wortley, ‘The Concept of Man in English Private International Law’ (1947) 33 Transactions of the Grotius Society 147 at 159.

There are two possible objections one could make to Dicey’s conclusion that the Indian law violated public policy because it was a prohibition on interracial marriage. First, one might argue that a caste-based

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prohibition, Dicey argues, is one that could never be applied by an English court, as it would

violate public policy to do so. Dicey (and others) thus argue that Chetti came out the way it

did because public policy prohibits English courts from recognizing foreign law that prohibits

interracial marriage.

While the judgment is not explicit on this point, Dicey’s reading of the case – that there

was a public policy problem with the Indian law because it constituted a prohibition on

interracial marriage – is supported by Lord Gorell’s reasons in Chetti. When reaching the

conclusion that Indian law could not be applied in this instance, Lord Gorell relied on a prior

English case from 1879 called Sottomayer v de Barros,158 which had also considered when

restriction is not equivalent to a race-based restriction, an argument that the Indian government has regularly employed when seeking to ensure that contemporary human rights prohibitions on racial discrimination do not apply to the still-persisting caste system. (For a discussion of one instance in which this approach was taken, see The Economist, ‘Still Untouchable,’ The Economist (14 June 2011), online: <https://www.economist.com/node/656502>.) On some accounts, the Hindu caste system had its origins in an occupation-based theory of the proper structure of society, and thus was not inherently (or at least originally) connected to racial or ethnic distinctions. (For a discussion of the competing theories of the development of the caste system, see RK Pruthi, ed, Indian Caste System (New Delhi: Discovery Publishing House, 2004).) However, while the Indian government may deny that the caste system constitutes racial discrimination, the caste system (particularly as it stood when Chetti was being decided) had all of the hallmarks of a system of race-based discrimination. During this period, caste was something that one was born into and that one could not exit; it was immutable. It strictly limited one’s place in the social order and was enforced through positive law and strict social norms; and it mapped on to ethnic difference. I therefore see no relevant distinction between such a system and a race-based system of discrimination, and fully agree with Dicey’s reading on this point.

A second possible objection to Dicey’s reading of the case is that perhaps the caste-based distinction that Lord Gorell finds problematic is actually a type of religious discrimination, rather than racial or ethnic discrimination. The prohibition on marrying outside one’s caste is rooted in religious dogma, and the reason why Hindu law would have prohibited Mr. Chetti from marrying Mrs. Chetti was that she was Christian – and not straightforwardly because she was a member of a particular ethnic or racial group. Lord Gorell’s reasons also indicate that the fact that it was a religious impediment to marriage was an important aspect of why Indian law could not be applied in this instance (Chetti, supra note 12 at 78 (noting that the common law cannot recognize religious disabilities)). In addition, some subsequent cases have read the case to be about religious discrimination, which makes this understanding of the case more plausible. (See e.g. Lepre v Lepre, [1963] 2 WLR 735, at 64 [Lepre v Lepre]; R v Hammersmith, supra note 132.) I see no contradiction, however, between reading the case as a public policy prohibition on both racial and religious discrimination. As the history of Nazi prosecutions following the Second World War shows, it is often difficult to pry apart whether certain laws constitute racial or religious discrimination, because religious difference can at times track racial or ethnic difference. (For a discussion of this issue, see Helen Brady & Ryan Liss, ‘The Evolution of Persecution as a Crime Against Humanity’ in Morten Bergsmo et al, Historical Origins of International Criminal Law, vol 3 (TOAEP, 2015) 429.) Reading Chetti and Sottomayer to also prohibit religious discrimination does not seem to diminish the importance of the cases’ conclusion that foreign prohibitions on interracial marriage are clear violations of public policy. 158 Sottomayer, supra note 18.

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foreign law establishing a domiciliary’s capacity to marry will be binding in an English forum.

The court in Sottomayer concluded, in a passage that was quoted at length by Lord Gorell in

Chetti, that:

No country is bound to recognize the laws of a foreign State when they work injustice to its own subjects … Numerous examples may be suggested of the injustice which might be caused to our own subjects if a marriage was declared invalid, on the ground that it was forbidden by the law of the domicile of one of the parties. It is still the law in some of the United States [such as North Carolina] that a marriage between a white person and a ‘person of color’ is void … Supposed a woman domiciled in North Carolina, with such an amount of colour in her blood as would arise from her great grandmother being a negress, should marry in this country, should we be bound to hold that such a marriage was void? … Mr. Dicey, in his excellent treatise on Domicile, p. 223, answers [this question] in the negative, and places [this case] under this head: – ‘A marriage celebrated in England is not invalid on account of any incapacity of either of the parties, which, though enforced by the law of his or her domicile, is of a kind to which our Courts refuse recognition.’159

In other words, the court in Sottomayer stated in 1878 – almost a century before the US

Supreme Court’s decision in Loving v Virginia – that foreign laws restricting interracial

marriage could not be recognized in England.160 Such laws established an incapacity to marry

which could not be granted recognition by English courts.

In Sottomayer, though, this language was merely obiter, since the case itself was not

about an interracial marriage.161 But in Chetti, this rationale was controlling: Lord Gorell relied

on this argument from Sottomayer to conclude that an Indian law prohibiting marriage outside

of a caste could not be applied in England.162 Lord Gorell thus recognized Mr. and Mrs.

159 Chetti, supra note 12 at 83, 85-86. 160 Loving v Virginia, (1967) 388 US 1. It is not entirely clear whether this analysis drove the decision to refuse to apply foreign law in Sottomayer, since the case seems to call into question the entirety of the normal capacity rule, but the language on interracial marriage is striking. 161 In Sottomayer, the issue was whether two first cousins could marry according to the law of their domicile. For a discussion of the case, see Kahn-Freund, ‘Reflections,’ supra note 153. 162 Chetti, supra note 12 at 85 (holding that Sottomayer is ‘decisive’ of the issue in Chetti).

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Chetti’s marriage as having validly been undertaken in England, and granted Mrs. Chetti’s

request for a divorce.

Dicey’s claim that Lord Gorell refused to apply the Indian prohibition on intercaste

marriage on the basis that bans on interracial marriage violate public policy is thus persuasive.

But what is less persuasive is Dicey’s understanding of why this interracial marriage ban

violated public policy.

In Dicey’s comments on Chetti and in his Conflicts treatise, he argues that the best way

to understand why the court held that racially discriminatory foreign marriage laws violate

public policy is because such laws are public laws, applicable only within the bounds of the

territory that establishes them.163 Dicey quotes Cooley, the American constitutional

commentator, who argues that ‘State laws forbidding the intermarriage of whites and blacks

are such police regulations as are entirely within the powers of the States, notwithstanding the

provisions of the new amendments to the Federal Constitution.’164 In articulating this

interpretation of Chetti, Dicey thus mirrors the approach some scholars offered to explain the

public policy prohibition on foreign laws permitting slavery discussed in Chapter 3.165 It is the

penal,166 public nature of such laws that means they are territorially limited and subject to

public policy objection by English courts.

But as I argued earlier in my discussion of Somerset,167 this analysis is unsatisfactory.

Dicey’s use of the concept of police or penal laws to distinguish those foreign private laws that

violate public policy is not helpful, as he provides us with no real basis to determine which

163 AV Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 2d ed (London: Stevens and Sons, 1908) at 634. 164 Ibid. 165 See supra Chapter 3, Part I.C. 166 As Dicey puts it, and as Westlake says in his treatise, which is quoted by the court in Chetti. Chetti, supra note 12 at 83. 167 See supra Chapter 3, Part I.C.

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foreign private laws are ‘actually’ public or police laws.168 His analysis offers little assistance

when trying to understand why a court would find a particular type of incapacity law to be

problematic as a matter of public policy.169

In addition, Dicey’s ‘public law’ explanation does not actually seem to track what

happens in Chetti – as Dicey himself observes!170 Aside from Lord Gorell’s use of the word

‘penal’ when quoting Westlake’s description of the type of foreign incapacity laws that cannot

be applied in England, there is nothing on the face of the judgment in Chetti that would make

us think that it is the ‘public’ nature of the Indian inter-caste marriage restriction that meant it

could not be applied as a matter of public policy. This leaves us with a question: Why is it that

the court in Chetti concluded that foreign laws prohibiting interracial marriage could not be

applied in England as a matter of public policy?171

C. The Equality Principle at Work in Chetti

In my view, the best way to understand the outcome in Chetti is as an example of

common law constitutionalist rule of law reasoning at work: we can read Lord Gorell’s

judgment as objecting to the Indian law prohibiting inter-caste marriage on the basis of the

equality principle. As discussed above, the equality principle has three essential aspects: the

rule of law prohibits (1) denying equal rights and freedoms to the law’s subjects; (2) who are

168 For a discussion of how this use of the term ‘penal’ is confusing, see Michael Mann, ‘Foreign Penal Laws and the English Conflict of Laws’ (1956) 42 Transactions of the Grotius Society 133. 169 Dicey does not, for instance, suggest that all forms of incapacity to marry represent penal laws, but simply that those concerning interracial marriage do. However, he does not indicate what about such capacity laws is distinct. This issue was actually picked up on by the court in Sottomayer, which discussed Westlake and Dicey’s idea that there is a public policy exception to foreign capacity laws. The court discussed how difficult it is to work out a conceptually coherent way to distinguish foreign laws that violate public policy and those that don’t, on this penal law approach. Sottomayer, supra note 18 at 105. 170 Dicey, ‘Chetti,’ supra note 153. 171 Today we might think that this is an obvious example of where public policy should be used, requiring little in the way of a justification. But when Chetti and Sottomayer were handed down, legally enforceable racial inequality was still very much a reality, and so it is not obvious why the court came to this decision.

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discriminated against on the basis of some arbitrary characteristic; and (3) this ‘constitutional’

value is an unwritten and essential feature of legality in the common law tradition. Each of

these three aspects of the equality principle is reflected, at least to some extent, in Lord Gorell’s

reasons in Chetti.

First, Lord Gorell recognizes that Indian law does not offer the same rights and

freedoms to all persons. He considers the Indian capacity law from the perspective of Mrs.

Chetti, the ‘unfortunate wife.’172 He argues that English law owes her protection from this

unjust law that would deny recognition of her marriage, in the same way that she would be

protected by English criminal and tort law if a man began ‘knocking her about’ on the street.173

The Indian law in this instance clearly treats Mrs. Chetti unequally.

Second, Lord Gorell makes a number of remarks that indicates that he understands the

Indian inter-caste marriage ban to be purely arbitrary discrimination. He argues that India’s

formal legal restrictions on caste were relatively recently imposed (and thus not deeply rooted

in Indian legal tradition), and points to recent Indian legislation that is meant to eliminate such

distinctions on the basis of caste.174 When questioning Mr. Chetti’s lawyers, Lord Gorell states

that he finds the idea that Hindu law travels with Mr. Chetti, restricting his ability to marry

outside of his caste wherever he goes, to be a ‘medieval’ one.175 His reliance on the language

from Sottomayer also makes clear he understands the Indian law to effectively constitute racial

discrimination. These observations suggest that Lord Gorell found the inter-caste (and thus

interracial) marriage prohibition to be merely arbitrary discrimination on the basis of race that

is not grounded in any conception of the public good.

172 Chetti, supra note 12 at 84. 173 Ibid at 72. 174 Ibid at 74-75 (‘changes would seem to be occurring, tending to relax some of the strict rules of caste’). 175 Ibid at 69.

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Finally, we know that Lord Gorell rooted his reasons in the fundamental principles of

the common law because he explicitly invokes the common law when reaching judgment. One

of Lord Gorell’s additional reasons for refusing to recognize the Indian law is that the common

law takes no notice of ‘religious disabilities.’176 That is, religious laws cannot bind common

law courts. It is thus the fundamental principles of the common law that must govern; and it is

on this basis that Lord Gorell refuses to apply the discriminatory Indian law in this instance.

Lord Gorell thus echoes the common law constitutionalist approach by grounding his

conclusion in the logic of the common law itself.

Along each of these three lines, then, Lord Gorell can be understood to have invoked

the equality principle, which prohibits the English court from recognizing laws that arbitrarily

distinguish between persons, denying their equal freedom on the basis of some characteristic

that has no legitimate purpose. On this basis, in 1908, Lord Gorell makes the remarkable

conclusion that foreign laws prohibiting interracial marriage violate the common law

constitutionalist equality principle and therefore they cannot be applied as a matter of public

policy. Chetti thus constitutes strong support for my reading of the public policy exception.

There is, however, an aspect of this reading of Chetti with which a skeptic could take

issue.177 One strange aspect of Lord Gorell’s judgment is that his reasons ignore the colonial

context in which his judgment was issued. The Indian caste system was formally legalized

during British imperial rule of India.178 It was therefore largely the fault of Lord Gorell’s own

176 Ibid at 78 (‘Of foreign professions (that is religious) the common law taketh no knowledge’). 177 See supra Chapter 1, Part V. 178 See Sasha Riser-Kositsky, ‘The Political Intensification of Caste: India Under the Raj’ (2009) 17:1 Penn History Review 31; Nicholas B Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001); MN Srinivas, ‘Mobility in the Caste System’ in Milton B Singer & Bernard S Cohn, eds, Structure and Change in Indian Society (Chicago: Aldine Publishers, 1968) 189. For a discussion of the mutual construction of systems of race and class in India and England, see Peter van der Veer, Imperial Encounters: Religion and Modernity in India and Britain (Princeton: Princeton University Press, 2001).

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state that there was a formal caste system in India in the first place. This fact is ignored by

Lord Gorell and seems to play no role in his decision. Even worse, Lord Gorell’s skeptical

attitude concerning the rationality of the Indian caste system, and his declaration that Mrs.

Chetti (an Englishwoman) needed to be ‘protected’ from Mr. Chetti, may evince a colonial

and racist attitude towards India and Indian laws that belies my racial equality-based reading.

It is certainly the case that during the Edwardian period (and beyond), prevailing

British attitudes towards the colonies were racist and dismissive; and the horrors of colonialism

were still not appreciated.179 Lord Gorell does not acknowledge Britain’s role in formalizing

the Indian caste system, and his primary concern seems to be protecting Mrs. Chetti (an

Englishwoman) and her child. Ultimately, however, we can only rely on the reasons Lord

Gorell provides us with. And in those reasons, he treats India as a foreign jurisdiction (rather

than a jurisdiction subject to English rule) for conflicts purposes, as he is required to do;180 and

he holds in essence that the Indian caste system is an arbitrary and irrational basis on which to

prevent Mr. and Mrs. Chetti’s English marriage from being recognized as valid. While Lord

Gorell may have been influenced by the various prejudices of his era, he also takes the

remarkable step of recognizing that there is something fundamentally problematic about an

interracial marriage ban, many decades before the US Supreme Court in Loving would rule

likewise.

179 See Benita Parry & Michael Sprinker, Delusions and Discoveries: India in the British Imagination, 1880-1930 (London and New York: Verso, 1998). But for a contemporary critique, see JA Hobson, Imperialism: A Study (New York: James Potts & Co, 1902). Debate remains today on the effects of Britain’s colonial enterprise. See Niall Ferguson, Empire (London: Allen Lane, 2003). 180 In this way, the case mirrors Somerset, which also treated a colony as a separate legal order. See Somerset’s case, (1772), [1772] Lofft 1 (HL (Eng)); see supra discussion in Chapter 3.

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D. Other Racial Discrimination Cases

The analysis above has shown that the equality principle has informed the reasons why

courts have used public policy to refuse to recognize foreign law that discriminates on the basis

of race in cases dating back to the late nineteenth century. This locates a connection between

racial discrimination and public policy predating Oppenheimer – the oft-cited source for the

premise that public policy will be invoked to deny the application of racially discriminatory

foreign laws. But Sottomayer and Chetti are not the only other instances in which courts have

stated that public policy should be used to refuse to recognize racially discriminatory foreign

law; we can also see the same reasoning at play in a range of other cases.

For example, in the 1947 case Frankfurther v WL Exner, an Austrian confiscatory

decree stripping Jews of their property was found to violate public policy.181 Similarly, in

Novello & Co. v Hinrichsen Edition, Ltd, from 1951, the court refused to recognize a forced

and undervalued sale of Jewish property in Nazi Germany.182 Igra v Igra, also from 1951,

discusses the fact that a German divorce decree was rooted in racial bias when deciding

whether to apply the public policy exception.183 In In Re Meyer, from 1971, the court does not

reach the issue of whether racial discrimination would be a sufficient basis on which to refuse

to recognize foreign law, instead refusing to recognize the Nazi law in question on the basis of

the consent principle discussed in Chapter 3 above; but the court strongly suggests that racial

discrimination was relevant to its analysis.184 In Williams & Humbert Ltd v W&H Trade Marks

Ltd, from 1986, the court repeatedly states that foreign laws that discriminate on the basis of

181 [1947] Ch 629. 182 [1951] Ch 1026. 183 [1951] P 404 (Probate, Divorce & Admiralty Division); see my prior discussion of the case in supra Chapter 3, Part II.B and David Fraser’s critique: David Fraser, ‘“This is not like any other legal question”: A Brief History of Nazi Law Before UK and US Courts’ (2003) 19 Conn J Intl L 59. 184 [1971] 2 WLR 401, [1971] P 298 (Probate, Divorce & Admiralty Division).

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race cannot be recognized as a matter of public policy.185 And in K v A, from 2014, Chetti is

followed as a case that prohibits discrimination on the basis of race, religion, or caste.186

E. Public Policy Cases that have Allowed Racially Discriminatory Foreign Law to Apply

Despite this strand of public policy jurisprudence, however, there are cases that have

‘gone the other way’ – where courts have failed to use public policy to refuse to recognize

foreign law, even when it is clear that the law discriminated on the basis of race. For example,

take the case of Harris v Cooper, which was heard by the Queen’s Bench of Upper Canada in

1871.187 The case considered whether a Canadian man, Mr. Harris – the son of two African-

American slaves – could inherit a plot of land in Toronto that had been owned by his father,

who died intestate.188 Whether Mr. Harris could inherit the land turned on whether his parent’s

marriage was valid.189 His parents had been married by a religious ceremony in Virginia in

1825, but at that time, Virginia prohibited slaves from marrying. Thus under the normal

conflict of laws rules, the law of the lex loci celebratonis (Virginia) would apply, and would

render the purported marriage invalid.190

Counsel for Mr. Harris explicitly argued that public policy should prohibit applying

Virginia law in this instance, and that therefore the marriage should be recognized as valid.191

Thus the question for the Ontario court was whether to apply the Virginia law that would have

prohibited the couple’s marriage from being recognized as valid on the basis that they were

185 Williams & Humbert, supra note 5 at 379: ‘English law will not recognise foreign confiscatory laws which, by reason of their being discriminatory on grounds of race, religion or the like, constitute so grave an infringement of human rights that they ought not to be recognised as laws at all’. 186 K v A, supra note 157. 187 [1871] OJ No 46. 188 The father was able to own the land because he escaped slavery in the 1830s by fleeing to a free state. 189 Ibid at para 34. 190 Ibid at para 38. 191 Ibid at para 25.

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slaves; or whether to refuse to apply the Virginia law as a matter of public policy. Reluctantly,

the court concluded that the Virginia law in question had to be recognized. While the court

noted that they ‘regret[ted]’ that they were ‘obliged to rest our decision on the recognition of

slavery and on its bad code,’ they held that no exception was available in the standard conflicts

analysis.192 (It was also clearly relevant to the court that Mr. Harris’ father had not taken

himself to have been bound by the Virginia marriage, as he later married another woman in

New York, a free state.193)

This case, decided in the wake of the American civil war, demonstrates the limits of

judicial imagination and of common law principles when confronted with a patently racist

foreign law. This was a straightforward example of a foreign law that arbitrarily discriminated

on the basis of race when setting out the legal rights of persons. But the Ontario court could

not see why this was a violation of public policy. This case thus challenges my argument that

public policy has been used to refuse to recognize foreign laws that discriminate on the basis

of race.

A second category of cases also challenges my account: American cases where courts

used public policy itself as a tool of racial discrimination. Most famously, in the Jim Crow era,

some American courts used the public policy exception to refuse to recognize valid foreign

interracial marriages for certain purposes.194 How can my account be valid when there are

examples of courts using public policy to further anti-racial equality policies?

Finally, one might also argue that there are ‘missing’ racial equality cases in the public

policy context. For example, while South Africa prohibited interracial marriage from 1949-

192 Ibid at para 70. 193 Ibid at para 68. 194 See Andrew Koppelman, ‘Same-sex Marriage and Public Policy: The Miscegenation Precedents’ (1996) 16 Quinnipiac L Rev 105.

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1985, no English or Canadian case considered whether this legislation would violate public

policy. Likewise, while Somerset is an important case for the liberty dimension of the public

policy exception, as discussed above in Chapter 3, it is perhaps surprising that the case was

not also argued on racial equality grounds.195

My claim that there is a connection between the use of public policy and foreign laws

that discriminate on the basis of race is not meant to suggest that all cases where an English or

a Canadian court confronted a racially discriminatory foreign law in the conflicts context were

correctly decided. Nor do I want to suggest that common law courts are immune from racial

bias or discrimination. But despite these failures and limitations, we can nevertheless observe

an important connection between the equality principle and the public policy exception in the

context of foreign laws that are racially discriminatory – a connection with deeper roots in the

case law than is commonly assumed. Identifying this important strand of jurisprudence for the

first time in the scholarship on the public policy exception will also help courts going forward

to avoid the mistakes made in cases like Harris v Cooper.

In addition, it is important to note that any rule of law approach to interpreting and

applying public policy will not solve all instances of racial discrimination – or any other type

of injustice. The choice of law context where public policy can be raised is highly limited;

even if my approach is born out in practice in a particular instance, it does not represent the

sort of act that can transform the entirety of the legal order. In addition, the rule of law approach

developed by the common law constitutionalists is a blunt instrument, designed to identify and

reject the only clearest examples of laws that attempts to exercise arbitrary power over legal

subjects. The effect of this approach may necessarily be partial and piecemeal, and is no

195 See discussion in supra Chapter 3, Part I.

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substitute for what Dyzenhaus has called a thoroughgoing ‘culture of legality’ that all three

branches of government must participate in for the rule of law to be given effect.196

Conclusion and Implications

Scholars of private international law have long pointed to discriminatory foreign laws

as a key example of when it is permissible for a common law court to use the public policy

exception to refuse to apply foreign law that has been selected through the normal choice of

law process. Yet this intuition that foreign laws that deny the fundamental equality of persons

cannot be applied in a common law court has not yet been connected in any substantial way to

the actual practice of courts, or to a broader theory of when it is appropriate to invoke public

policy. This chapter has sought to fill that gap, by arguing that in a range of cases, English and

Canadian courts have invoked public policy when confronted with a foreign law that

discriminates between persons on the basis of an arbitrary characteristic such as race, gender,

or sexual orientation. This analysis helps to establish that there is an important strand of

reasoning in the public policy jurisprudence that tracks the equality dimension of the common

law constitutionalist account of the rule of law. And this analysis thus builds on the claim I

began to establish in Chapter 3: that there is a connection between the common law

constitutionalist account of the rule of law and use of the public policy exception in practice.

On this account, common law courts use public policy when the substance of foreign law

violates the common law’s conception of the rule of law, as set out in the work of TRS Allan

and David Dyzenhaus.

In addition to contributing to our understanding of the public policy exception, the

analysis in this chapter may have a number of other important implications. First, my analysis

196 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge, UK: Cambridge University Press, 2006) at 233 [Dyzenhaus, Constitution of Law].

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in this chapter may suggest other ways in which the public policy exception could be applied

going forward. My analysis is not meant to apply only in the contexts of arbitrary

discrimination on the basis of race, gender, and sexual orientation, but rather it can be used in

the context of other types of arbitrary discrimination undertaken by foreign law. There is

already public policy jurisprudence from the religious discrimination context,197 and this

approach could readily be applied when other forms of discrimination arise.

Second, and relatedly, my analysis in this chapter may be relevant to a developing

strand of private international law literature that has called for a greater connection between

private international law and human rights law.198 Scholars in this tradition have argued that

private international law doctrine must be more attuned to the human rights consequences of

transnational law, and have thus argued for a greater connection between public and private

international law. The analysis I develop in this chapter, however, shows that there is already

a longstanding tradition of refusing to apply foreign law that denies the fundamental equality

of persons. As the doctrine currently stands, it provides an important way in which the

fundamental equality rights of persons can be protected; and this previously overlooked

jurisprudence could be built upon to further protect human rights through the use of public

policy.199 As I mention at several points above, my analysis also shows that the emergence of

this connection between public policy and fundamental equality rights did not depend on the

197 See e.g. Parmar v Canada (Minister of Employment and Immigration), [1991] IADD No 180; K v A, supra note 157; Gray (Orse Formosa) v Formosa, [1962] 3 WLR 1246; Lepre v Lepre, supra note 157; but see Canada (Minister of Employment and Immigration) v Sidhu, [1993] 2 FC 483; R v Brentwood Superintendent Registrar of Marriages, Ex parte Arias, [1968] 3 WLR 531. 198 See e.g. Horatia Muir Watt, ‘Private International Law Beyond the Schism’ (2011) 2:3 Transnational Legal Theory 347; Horatia Muir Watt & Diego P Fernández Arroyo, eds, Private International Law and Global Governance (Oxford: Oxford University Press, 2014). 199 A similar argument could be made for the liberty dimension of the public policy exception that I describe above in Chapter 3.

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development of written constitutional or human rights documents, but rather has been

generated by the logic of the common law itself.

Third, this chapter may be relevant to an ongoing debate in Canadian constitutional

law regarding the meaning of the courts’ use of ‘Charter values.’200 As I described in my

discussion of Hincks above, the court in that case concluded that UK law that offered a

‘separate but equal’ marital regime for gay couples did not violate the formal requirements of

the Canadian constitution, but rather it violated the more amorphous idea of ‘Charter

values.’201 This phrase has long puzzled Canadian constitutional scholars, but in this chapter,

I offer a possible explanation for how Charter values are used in Hincks and elsewhere: perhaps

courts who rely on this idea are simply ensuring that all exercises of legal power are consistent

with the rule of law values of the common law constitution, which go beyond the requirements

of formally applicable constitutional rights and freedoms.202 The analysis I provide of the

Hincks case and its reliance on Charter values may therefore help to explain this important

Canadian constitutional doctrine that has troubled commentators.

Finally, my analysis may help give shape and specificity to the common law

constitutionalist account of the rule of law. As I argue in Chapter 2, this theory of the rule of

law holds that the equality principle is an important aspect of the rule of law in the common

law tradition. But when Allan, for example, sets out this principle, it is done largely in the

abstract, without discussing the particulars of cases where we should see this principle

200 See supra note 55. 201 See supra note 47. 202 That is, common law constitutionalist values – and Charter values – apply even in the absence of a formal violation of the constitution by a particular legislative or administrative act to which a constitution is formally meant to apply.

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emerge.203 In this chapter, however, I identify many examples of the equality principle at work.

These examples may help give greater specificity and clarity to the common law

constitutionalist account of the connection between the rule of law and equality. Similarly, this

chapter may be relevant to the philosophical literature on how to understand legal guarantees

of equality. As I mention in passing in Chapter 2, there is an extensive literature on the legal

meaning of equality.204 The understudied cases highlighted in this chapter may provide

important examples that could be explored in this literature, as they show the operation of

equality principles that apply even in the unusual contexts of unwritten principles and

transnational disputes.

With the conclusion of this chapter, I have completed the core of my analysis in support

of my rule of law account of the public policy exception. In the next chapter, however, I will

turn to an important ‘hard case’ that seems to challenge my rule of law account: the House of

Lords’ well-known judgment in Kuwait Airways Corporation v Iraqi Airways Company.205

This case is among the most famous public policy judgments ever decided, and yet it seems to

pose a significant challenge to my position, as it does not seem to fit neatly into the common

law constitutionalist account of the rule of law.

203 By contrast, Dyzenhaus draws on more examples when articulating his position. See e.g. Dyzenhaus, Constitution of Law, supra note 196; David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2d ed (Oxford: Oxford University Press, 2010). 204 See supra Chapter 2, Part III.B.iv. 205 Kuwait Airways, supra note 141.

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CHAPTER 5

A HARD CASE: KUWAIT AIRWAYS CORPORATION V IRAQI AIRWAYS COMPANY

Introduction

The central claim of this dissertation is that the best way to understand the role of the

public policy exception is that it will be employed by courts when the normally applicable

foreign law violates the forum’s substantive rule of law values. In particular, I have sought to

establish that the exception’s use in England and Canada has tracked the common law

constitutionalist conception of the rule of law.

In this chapter, I confront an important ‘hard case’ that appears to challenge my

common law constitutionalist account: Kuwait Airways Corporation v Iraqi Airways

Company, a 2002 judgment of the House of Lords.1 Kuwait Airways is perhaps the leading

contemporary public policy case in common law jurisprudence.2 Yet the reasons that the court

relied on for refusing to apply foreign law seem to have little to do with the common law

constitutionalist conception of the rule of law.

In Kuwait Airways, the Lords refused to recognize an Iraqi law, as a matter of public

policy, on the grounds that it violated public international law. At issue was an Iraqi executive

resolution that transferred title to property that had been forcibly seized by the Iraqi

government during its 1990 invasion of Kuwait. Ordinarily a foreign state’s laws regarding

property situated in its territory are recognized by common law courts under choice of law

rules governing chattels. However, in Kuwait Airways, the Lords held that it would be contrary

1 [2002] UKHL 19 [Kuwait Airways, House of Lords]. 2 It is frequently referred to this way in the jurisprudence and scholarship. To take just one example of a recent scholarly work treating it as a leading case, see Sagi Peari, The Foundation of Choice of Law: Choice and Equality (Oxford: Oxford University Press, 2018).

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to public policy to recognize the Iraqi resolution, because Iraq’s actions and the resolution

itself were in clear violation of public international law.3

The court’s decision in Kuwait Airways to refuse to recognize a foreign law as a matter

of public policy on the grounds that it violated rules of public international law does not seem,

without more analysis, to be connected to common law constitutionalist rule of law reasoning.

As I shall discuss, the reasons that the court gives for refusing to recognize foreign law that

violates public international law are not connected to either the liberty or the equality

dimension of the common law constitutionalist account. In addition, an important doctrinal

ambiguity in the case regarding which violations of public international law also violate public

policy makes a rule of law reading of the case seem implausible.4 Kuwait Airways is therefore

a leading contemporary public policy case that appears to be a ‘hard case’ for my common law

constitutionalist account of the exception to accommodate.

3 In articulating this conclusion, Kuwait Airways crystallized a line of jurisprudence that dates back to as early as 1817, in which common law courts have refused to apply foreign law that violates public international law as a matter of public policy. This principle was recognized as early as 1817, in Wolff v Oxholm, (1817), 105 ER 1177, where an English court refused to give effect to a Danish confiscatory decree that would have been given effect under normal choice of law rules, on the grounds that the decree was ‘not conformable to the usage of nations.’ Similarly, in In re Fried Krupp Actien-Gesellschaft, [1917] 2 Ch 188, an English court refused to recognize German legislation that prohibited payment to enemy nationals in time of war, even though the governing law of the contract under consideration was German, on the grounds that the German legislation was ‘not conformable to the usage of nations.’ While neither Wolff v Oxholm nor In re Fried Krupp Actien-Gesellschaft explicitly connected their holdings to the public policy exception, that connection was forged in In re Helbert Wagg, [1956] Ch 323, another English case from 1956. Helbert Wagg held that it is part of the public policy of England to give effect to clearly established rules of international law, as stated in cases like Wolff and Fried Krupp, and thus it is appropriate to use the public policy exception in choice of law to refuse to recognize a foreign law that is in violation of public international law. This connection was also affirmed in Oppenheimer v Cattermole, discussed infra. For scholarship identifying this principle, see e.g. Martin Davies, ‘Kuwait Airways Corp v Iraqi Airways Co: The Effect in Private International Law of a Breach of Public International Law by a State Actor’ (2001) 2 Melbourne Journal of International Law 523 [Davies, ‘Kuwait Airways’]; Joost Blom, ‘Public Policy in Private International Law and its Evolution in Time [2003] NILR 373. For treatises, see Sir Lawrence Collins, Dicey, Morris and Collins on the Conflict of Laws, 14th ed (London: Sweet & Maxwell, 2006) at 97; David McClean & Kisch Beevers, The Conflict of Laws, 6th ed (London: Sweet & Maxwell, 2005) at 52 (‘the Kuwait Airways case established that breaches of public international law could attract the public policy doctrine’); CMV Clarkson & Jonathan Hill, The Conflict of Laws, 4th ed (Oxford: Oxford University Press, 2006) at 55. 4 As I argue in infra Part II.

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However, this chapter will argue that Kuwait Airways’ use of the public policy

exception to refuse to apply foreign law that violates public international law can, in fact, be

explained by my rule of law account of the exception. We can understand the holding in Kuwait

Airways, I will show, as a manifestation of common law constitutionalist rule of law

reasoning.5

This chapter will make this argument in four parts. In Part I, I offer an overview of

facts and the judgments in the Kuwait Airways case. In Part II, I discuss how scholars have

interpreted the Kuwait Airways case and why these standard readings mean that the case

appears to challenge my common law constitutionalist approach to understanding the public

policy exception. Scholars have argued that the holding in the case was motivated variously

by a concern for international peace, international values, and the UK’s foreign policy

objectives. But none of these motivations seems to be connected in any way to common law

constitutionalist rule of law values discussed in Chapter 2. In addition, I argue, ambiguity in

the case as to which violations of public international law should count as public policy

violations also makes a rule of law reading of the case seem implausible. For these reasons, I

explain, Kuwait Airways poses an important challenge for my theory.

However, in Part III, I argue that Kuwait Airways is, in fact, wholly consistent with my

rule of law conception of the public policy exception. Kuwait Airways can be read to stand for

the holding that foreign law that violates the peremptory or jus cogens norms of public

5 Unlike the prior two chapters, both of which discussed a number of cases to substantiate my interpretation of the exception, this chapter will focus primarily on Kuwait Airways. While I will briefly discuss how the case relates to prior and subsequent cases (see infra Part IV), I choose to focus on Kuwait Airways because it is subject to extensive scholarly treatment as the leading and foundational contemporary case regarding the use of the public policy exception in the context of violations of public international law.

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international law constitute public policy violations. And this holding, I argue, is in fact

motivated by common law constitutionalist rule of law values.

Finally, in Part IV, I argue that this rule of law reading of the case is consistent with

other aspects of the reasoning in Kuwait Airways, and with prior and subsequent public policy

cases that also consider which violations of public international law amount to violations of

public policy.

Part I: Overview of the Kuwait Airways Case

A. Factual Background

The Kuwait Airways case arose out of the events that precipitated the Gulf War. In

August of 1990, Iraq invaded Kuwait and proclaimed Kuwait’s territory to be annexed to Iraq.6

Following the invasion, Iraqi forces engaged in a systematic campaign of plunder of Kuwait’s

assets and resources. In ‘one of the most striking instances of national piracy in modern

history,’7 Iraq stripped down and removed Kuwait’s financial assets, industrial and commercial

infrastructure, transportation, communication systems, and other resources.8 These assets were

taken back to the territory of Iraq proper.

Among the many assets seized were ten commercial aircraft that belonged to the

Kuwait Airways Corporation. After the planes were removed from Kuwait and taken to Iraq,

the Iraqi government passed Resolution 369, a law transferring title in the planes to the Iraqi

6 Kuwait Airways, House of Lords, supra note 1 at para 1; Kuwait Airways Corporation v Iraqi Airways Company, [2001] 3 WLR 1117 (CA (Eng)) [Kuwait Airways, Court of Appeal] at para 4. 7 Kuwait Airways, Court of Appeal, ibid at para 363 (quoting Efraim Karsh, ‘Reflections on the 1990-1991 Gulf Conflict’ (1996) 19:3 Journal of Strategic Studies 303 at 306-307). 8 Kuwait Airways, Court of Appeal, ibid at para 362.

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Airways Company, Iraq’s national carrier.9 Iraqi Airways began to use the planes for internal

flights, and repainted several of the planes in its livery.10

Iraq’s invasion of Kuwait, and its seizure of Kuwaiti assets, was swiftly and decisively

condemned by the international community. The United Nations Security Council passed a

series of resolutions that declared the invasion illegal and condemned Iraq’s seizure of Kuwaiti

property.11 After mounting threats from the Security Council failed to make Iraq retreat, a

coalition of forces, authorized by the Security Council and led by the United States, took

military action to expel Iraq from Kuwait’s territory.12

During coalition bombing, the Allied forces destroyed four of the ten aircraft that had

been taken from Kuwait.13 The other six were evacuated to Iran, where Kuwait Airways paid

for the planes to be stored until the end of the war.14 After the hostilities ceased, these six

aircraft were returned to Kuwait.15

The Gulf War ended with a ceasefire, whereby Iraq agreed to comply with a series of

Security Council-mandated terms. Among these terms was an obligation to repeal the various

resolutions that the Iraqi government had passed since the invasion, including Resolution 369

granting title in the ten aircraft to Iraqi Airways.16

9 In fact, it purported to transfer title to all of Kuwait Airways’ assets wherever located, not just the ten aircraft in question. Ibid at para 246. 10 Ibid at para 22. 11 Ibid at paras 248-258; Kuwait Airways, House of Lords, supra note 1 at para 20. 12 Kuwait Airways, Court of Appeal, supra note 7 at para 8. 13 Ibid. 14 Ibid at para 9; Kuwait Airways, House of Lords, supra note 1 at para 4. 15 Kuwait Airways, House of Lords, ibid. 16 Kuwait Airways, Court of Appeal, supra note 7 at paras 259-60; Kuwait Airways, House of Lords, ibid at para 108.

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B. Kuwait Airways’ Suit and the Public Policy Issue

Shortly after the ten aircraft were seized, Kuwait Airways filed suit against Iraqi

Airways in English court.17 Kuwait Airways sued in tort for conversion, claiming over $800

million in damages, on the theory that Iraqi Airways had wrongfully interfered with Kuwait

Airways’ ownership of the ten aircraft by using the planes in a manner that was inconsistent

with its rights.18

Since this was a suit in tort with significant factual connections to another jurisdiction,

the central legal issue raised by the case was the choice of applicable law: which state’s law

should apply to resolve the dispute? The English choice of law rule in tort at the time was the

so-called ‘double actionability’ rule.19 Under this rule, a suit for an alleged tort that took place

outside of England could only be brought in English court if the alleged wrong was (1) a tort

under English law and (2) was civilly actionable by the law of the place where alleged wrong

occurred.20

In this case, the alleged wrong – Iraqi Airways’ use of Kuwait Airways’ planes – took

place in Iraq. And here, Kuwait Airways’ claim ran into a problem. Under the law of Iraq at

the time when the alleged wrongful interference took place, Kuwait Airways did not own the

ten aircraft. Through Resolution 369, the Iraqi government had transferred title in the planes

from Kuwait Airways to Iraqi Airways – and so it appeared as if Kuwait Airways had no legal

claim to own the planes during the period when the alleged wrong occurred, and thus no

conversion claim could be made out.21 Or, to put it another way, Iraqi Airways had a legal

17 For a discussion of the lengthy procedural history in the case, see Kuwait Airways, Court of Appeal, ibid at paras 10-103. 18 Kuwait Airways, House of Lords, supra note 1 at para 3. 19 Ibid at paras 12, 111, under the rule in Boys v Chaplin, [1971] AC 356. As discussed in Chapter 3, this is no longer the rule in England. 20 Ibid at para 12. 21 Ibid at para 13.

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right to use the planes under Iraqi law, so no wrongful use claim could be established.

Resolution 369 therefore appeared to provide Iraqi Airways with a complete defence.22

However, Kuwait Airways argued that Resolution 369 should not be recognized by the

English court as a matter of public policy.23 In Oppenheimer v Cattermole and In Re Helbert

Wagg, English courts had stated that it is part of the public policy of England to give effect to

clearly established rules of international law.24 Kuwait Airways urged the court to follow this

precedent and to hold that Resolution 369 should not be recognized as a matter of public policy,

because Iraq’s seizure of the aircraft and Resolution 369 were in flagrant violation of public

international law rules prohibiting the use of force against the territorial integrity of another

state and the Security Council resolutions declaring Iraq to have breached this prohibition.25

Iraqi Airways offered several arguments in response to Kuwait Airways’ public policy

claim. First, they argued that the legality of Resolution 369 was non-justiciable,26 since

pronouncing on the legality of Resolution 369 would require a municipal English court to

assess the legality of the act of a foreign state. This, Iraqi Airways argued, was prohibited by

the English case Buttes Gas, which held that the legality of acts of foreign states were non-

justiciable in English court.27

Second, Iraqi Airways argued that the foreign ‘act of state’ doctrine required English

courts to recognize Resolution 369.28 Under this doctrine, English courts must recognize the

22 Kuwait Airways, Court of Appeal, supra note 7 at para 236. 23 Kuwait Airways, House of Lords, supra note 1 at para 14. 24 Ibid at paras 114, 139, 149. 25 Ibid at paras 20-22. 26 Ibid at paras 135, 137. 27 Ibid at paras 24, 135. 28 The key cases establishing the foreign act of state doctrine are Luther v Sagor, [1921] 3 KB 532 and Princess Paley Olga v Weisz, [1929] 1 KB 718; see also Underhill v Hernandez, (1897) 168 US 250, 252 (US Supreme Court). Similarly, there is a British act of state doctrine, prohibiting suits from aliens against the British government in its acts abroad; see Buron v Denman, (1848) 2 Ex 16; Walker v Baird, [1892] AC 491; Johnstone

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sovereign acts of foreign states that apply within that foreign state’s territorial boundaries,

including the state’s legislative and executive acts,29 if the UK’s executive branch has

recognized the state as sovereign. Since the UK government recognized the Iraqi state, its

courts were required to recognize the acts of the Iraqi state.

Third, Iraqi Airways argued that in the context of foreign acts of state, the public policy

exception’s use should be taken to be extremely limited: English courts should only invoke the

public policy exception when faced with foreign acts of state that violate international human

rights law.30 To support this argument, Iraqi Airways took a narrow reading of Oppenheimer

v Cattermole.31 The problem with the Nazi law in Oppenheimer was not that it violated public

international law generally, but that it had violated international human rights law in particular.

Since there was no alleged violation of international human rights law in the context of Kuwait

Airways,32 the public policy exception could not be invoked.33

When the case reached the House of Lords on the merits, after a lengthy procedural

history,34 Kuwait Airways was heard by Lords Nicholls, Steyn, Hoffmann, Hope, and Scott.

Lord Nicholls authored the lead judgment, with which the other four Lords concurred (the

exception was Lord Scott, who dissented on a point discussed below).35 Each of the Lords

issued their own reasons. Lords Nicholls, Steyn, and Hope discussed the issues of central

v Peddlar, [1921] 2 AC 262; for a contemporary example, see the recent Mohammed and others (Respondents) v Ministry of Defence (Appellant), [2017] UKSC 1 & [2017] UKSC 2. 29 Altimo Holdings and Investment Ltd v Kyrgyz Mobil tel Ltd, [2012] 1 WLR 1804. 30 Kuwait Airways, House of Lords, supra note 1 at para 24. 31 Ibid at para 114. 32 Particularly since the plaintiff was a corporation. Kuwait Airways, Court of Appeal, supra note 7 at para 381. 33 Iraqi Airways made a fourth argument that I do not discuss here: that even if Resolution 369 is not recognized for the purpose of determining who had title to the aircraft, it should be recognized for tort law purposes. This argument was rejected by the Lords, who (as we shall see) refused to recognize Resolution 369 for any purpose. 34 See supra note 17. 35 See infra Part IV.B.

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concern to us – the justiciability, act of state, and public policy issues – while Lord Hoffman

confined his judgment to a discussion of the causal requirements of a conversion action.36

The threshold issue in the case was justiciability under Buttes Gas; if the court had

determined that they could not adjudicate the legality of Resolution 369 under public

international law, the case would not have been able to proceed.37 All five Lords rejected Iraqi

Airways’ non-justiciability claim. In Lord Nicholls’ lead judgment, he distinguished the Buttes

Gas case, holding that it does not stand for the wide-ranging non-justiciability principle that

Iraqi Airways had argued it did. Buttes Gas was a defamation suit that would have required

the court hearing the case to decide which country owned part of the Continental Shelf, in

order to pronounce on the defamation issue.38 Lord Wilberforce, in deciding the case,

concluded that this issue was non-justiciable on the grounds that there was no ‘judicial or

manageable standard by which to judge the issues’ (the territorial claims on which the

defamation action rested).39

In Kuwait Airways, however, the situation was very different, Lord Nicholls and Lord

Steyn explained. The public international law norms on point were extremely clear: Iraq had

clearly violated the jus cogens prohibition on the use of force; it had acted in violation of the

UN Charter prohibition on the use of force; Security Council resolutions were passed declaring

Iraq’s actions illegal; no state recognized Iraq’s annexation of Kuwait or its authority in

Kuwait; and Iraq itself had accepted the illegality of its actions. This was not a dispute that

36 And thus I do not discuss his reasons here. 37 The Court of Appeal called it a threshold issue: Kuwait Airways, Court of Appeal, supra note 7 at para 325. 38 Buttes Gas and Oil Co v Hammer (No 3), [1982] AC 888. 39 Ibid at 938. Lord Wilberforce held that the court was in a ‘judicial-no-man’s land.’ In essence, determining which country owned the relevant part of the Continental Shelf was a political question, not a legal question, because there was no legal metric by which the issue could be judged.

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lacked a legal standard under which the dispute could be decided. Rather, this was an issue

that could be evaluated according to clear legal rules.

When considering Iraqi Airways’ act of state argument, the Lords acknowledged that

as a matter of course, sovereign acts taken by a recognized foreign state that relate to that

foreign state’s territory are normally recognized by English courts. But, as Lord Nicholls

emphasized in his lead judgment, this does not mean that courts must blindly accept the

validity of foreign governmental acts.40 Courts can always resort to public policy to refuse to

recognize, enforce, or apply foreign law; if a foreign law is contrary to the fundamental

requirements of justice of the forum state, it cannot be applied by the forum court. This public

policy exception is derived from the institutional role of English courts:

When deciding an issue by reference to foreign law, the courts of this country must have a residual power, to be exercised exceptionally and with the greatest circumspection, to disregard a provision in the foreign law when to do otherwise would affront basic principles of fairness which the courts seek to apply in the administration of justice in this country.41

In other words, according to Lord Nicholls, common law courts have a ‘residual power’ to

refuse to apply unjust laws through the instrument of public policy. Iraqi Airways argued that

this residual power should only be exercised in the context of violations of international human

rights law. But this does not follow from the concept of a residual power, argued Lord Nicholls,

which ‘cannot be confined to one particular category of unacceptable laws. That would be

neither sensible nor logical. Laws may be fundamentally unacceptable for reasons other than

human rights violations.’42

40 Kuwait Airways, House of Lords, supra note 1 at para 16 (‘blind adherence to foreign law can never be required of an English court’). 41 Ibid at para 18 (emphasis added). 42 Ibid.

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In Kuwait Airways, the foreign law in question – Resolution 369 – was fundamentally

unacceptable because it was a flagrant breach of fundamental rules of public international law

– most importantly the prohibition on the use of force. According to Lord Nicholls, Resolution

369 was ‘not simply a governmental expropriation of property within its territory.’43 Rather, it

was ‘part and parcel’ of Iraq’s invasion of Kuwaiti territory and plundering of its assets,44

which were ‘flagrant violations of rules of international law of fundamental importance.’ Since

Resolution 369 flowed from an illegal act, it would violate public policy to recognize it.

Lords Steyn and Hope were equally clear that foreign laws that flagrantly violate

important rules of public international law may be refused recognition as a matter of public

policy. Lord Steyn stated that, ‘[i]n my view the Court of Appeal was right to extend the public

policy exception beyond human rights violations to flagrant breaches of public international

law.’45 For Lord Hope, it is part of the public policy of England ‘to give effect to clearly

established principles of international law.’ While public policy must be used with care, ‘there

is no need for restraint on grounds of public policy where it is plain beyond dispute that a

clearly established norm of international law has been violated.’46 Since Resolution 369

violated public international law,47 it would be contrary to English public policy to recognize

its effect.

43 Ibid at para 28. 44 The decree was ‘part of [Iraq’s] attempt to extinguish every vestige of Kuwait’s existence as a separate state.’ Ibid. 45 Ibid at para 114. 46 Ibid at para 144. 47 Ibid at para 140.

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After refusing to recognize Resolution 369 as a matter of public policy, the House of

Lords went on to conclude that tortious liability could be made out under both English law and

Iraqi law (once Resolution 369 was disregarded) in regard to the ten aircraft.48

Part II: Why Kuwait Airways Poses a Problem for my Rule of Law Account

Since it was handed down, Kuwait Airways has become a leading contemporary public

policy case, frequently cited by courts and scholars for its analysis regarding when the

exception should be used. Yet it also poses an important challenge for my rule of law account

of the exception, given the way that scholars have interpreted the case.

A. The Normative Rationale for Using Public Policy in Kuwait Airways

Scholars writing about Kuwait Airways have sought to identify the normative rationale

that motivated the court to use public policy to refuse to apply the Iraqi law that violated public

international law. Scholars have identified a number of different motives for using public

policy at play in the case. Yet none of these rationales for using public policy appears to have

been connected in any way to common law constitutionalist rule of law reasoning.

Carruthers and Crawford interpret the decision as motivated by the need to preserve a

peaceful international system; they argue that ‘the sub-division of public policy which is

central to this decision is that which pertains to the maintenance and fostering of good

international relations and peaceful international order.’49 Other scholars have argued that the

48 Ultimately, the Lords concluded that damages were available only with regard to the six aircraft that had been stored in Iran, and not the four aircraft that were destroyed by coalition bombing during the Gulf War’s active hostilities. 49 Janeen M Carruthers & Elizabeth B Crawford, ‘Kuwait Airways Corporation v Iraqi Airways Company’ (2003) 52 ICLQ 761 at 768. Carruthers and Crawford derive this conclusion from an examination of ‘the whole edifice of the decision’ (ibid) but specific reference to this justification can be seen in Lord Nicholls’ remarks that ‘[a] breach of international law of this seriousness is a matter of deep concern to the world-wide community of nations … As nations become ever more interdependent, the need to recognize and adhere to standards of conduct set by international law becomes ever more important.’ Kuwait Airways, House of Lords, supra note 1 at para 28. In this comment, Lord Nicholls suggests that international law is important because it allows states to peacefully co-exist in a stable international order. Iraq’s actions threatened this international order, and thus the House of Lords

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court’s decision to connect public policy to public international law was justified by the need

to protect important international values. As Thio argues, Kuwait Airways ‘identifies and

buttresses shared “communitarian” international legal values.’50 The case ‘manifests a

cosmopolitan outlook’ and ‘[strengthens] international solidarity,’ providing a means by which

courts can uphold and reinforce important international principles.’51 Still other scholars have

argued that the justification for invoking public policy in the case of violations of public

international law is to avoid embarrassment for the forum state’s government in its conduct of

foreign affairs. As Briggs says:

[I]t could have been acutely embarrassing for the government of the United Kingdom, a permanent member of the Security Council, for its courts to accept and apply [Resolution] 369 as the lex situs and defeat the claim of the [Kuwait Airways Corporation] as a dispossessed owner of stolen aircraft. There being no doubt that the adjudication of [Resolution] 369 as unworthy of recognition was not itself embarrassing to the government, the demands of this limb of public policy were obvious.52

According to Briggs, then, the court was justified in refusing to apply foreign law that violated

public international law because otherwise the court would have inhibited the government’s

foreign policy objectives.53

was justified in using public policy to refuse to recognize laws that facilitated Iraq’s invasion and seizure of Kuwaiti property. 50 Li-ann Thio, ‘English Public Policy, The Act of State Doctrine and Flagrant Violations of Fundamental International Law: Kuwait Airways Corp v Iraqi Airways Co (2002)’ (2003) 18 Conn J Int’l L 585 at 586. 51 There is support for this interpretation of the case in the Lords’ reasons, and particularly in the speeches of Lord Steyn and Lord Hope. Lord Steyn cautions against an ‘insular’ approach to public policy, as ‘[l]ocal values ought not lightly to be elevated into public policy on the transnational level. Kuwait Airways, House of Lords, supra note 1 at para 114. Ibid at para 166. But in the context of Kuwait Airways, he stresses, there is no such concern with the use of public policy, because the law and norms under which Iraq’s actions were found to be illegal were clearly international in nature. Lord Hope, for his part, also warns against the rejection of foreign law on a basis that was ‘purely domestic or parochial in nature’ (particularly in the context of a dispute with so few connections to the forum). However, Kuwait Airways did not raise this issue, he noted, because of the international nature of the concerns at play. Since ‘the public policy objection is truly international in character, there is a sound basis for [applying it in this instance].’ Ibid at para 168. 52 Adrian Briggs, ‘Public Policy in the Conflict of Laws: A Sword and a Shield?’ (2002) 6 Sing JICL 953 at 967-968 [Briggs]. 53 Commenting on the Court of Appeal’s decision, Matthew Nicholson reaches a similar conclusion about the case, arguing that it is driven by ‘[p]olitical considerations and the view of the British government.’ Matthew Nicholson, ‘The Political Unconscious of the English Foreign Act of State and Non-Justiciability Doctrine(s)’

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Kuwait Airways has therefore been construed by scholars to support at least three

distinct justifications for using public policy when a foreign state’s law violates public

international law: protecting international peace, protecting international values, and the

protecting the forum’s foreign policy objectives. But none of these justifications appear to be

connected, without more analysis, to the common law constitutionalist account of the rule of

law. Protecting international values, the international order, and the UK’s foreign policy

objectives are all political values – they are functional, consequentialist justifications for

applying international law. They seem entirely unrelated to the type of reasoning that is

required by the common law constitutionalist account of the rule of law that I developed in

Chapter 2 and showed was at work in the case law in Chapters 3 and 4. The liberty and equality

dimensions of the common law constitutionalist account, which are meant to ensure that

individuals are not subject to arbitrary power, are unrelated to concerns about international

order, international values, and foreign policy.54 Thus when deciding to refuse to apply Iraqi

Resolution 369 as a matter of public policy, the House of Lords did not appear to rely on the

type of rule of law reasoning that my account of common law constitutionalism set out in

Chapter 2 would have predicted.55 For this reason, Kuwait Airways poses an important

(2015) 64 ICLQ 743 at 752 [Nicholson]. This interpretation of Kuwait Airways is arguably supported by language in the case. Lord Hope notes that in Oppenheimer, a principle underlying the act of state doctrine is the need to avoid ‘embarrassing … the executive, whose function is so far as possible to maintain friendly relations with foreign states.’ Kuwait Airways, House of Lords, supra 1 at para 138. After conducting his analysis regarding the use of public policy, Lord Hope decides that ‘[t]here could be no embarrassment to diplomatic relations’ in concluding that no legal effect should be given to Resolution 369. Ibid at para 147. 54 Indeed, the Lords in Kuwait Airways seem to reject an account of public policy that is focused on protecting human rights (such as fundamental liberty and equality rights) when they reject Iraq’s argument that public policy should be limited to protecting international human rights. 55 This disconnect has been identified by scholars such as Alex Mills, who has argued that the case represents an emergence of an ‘international’ public policy which is distinct from the typically ‘local’ concerns of ‘national’ public policy. See Alex Mills, The Confluence of Public and Private International Law (Cambridge, UK: Cambridge University Press, 2009) at 274-275 [Mills, Confluence], contrasting national public policy with international public policy and arguing that the two doctrines are not contiguous. Rather, international public policy is a separate and distinct source of normativity. See also Horatia Muir-Watt on the emergence of European public policy, which she claims similarly transcends national concerns: Horatia Muir Watt, ‘Evidence of an

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challenge to my rule of law account of the exception, as it is a leading public policy case that

appears to have been decided on grounds that appear to be unrelated to the rule of law.

B. Doctrinal Ambiguity in Kuwait Airways

A second problem for a possible rule of law reading of Kuwait Airways arises from the

way in which scholars have interpreted the doctrinal test that the case sets out for determining

when a violation of public international law will trigger the use of public policy. In their

speeches, Lords Nicholls, Steyn, and Hope all state that a foreign law that violates public

international law can be refused application by an English court on grounds of public policy.

Yet at several points in the judgment, the Lords suggest there are limits on this broad holding;

they make clear that they do not think that any violation of any rule of public international law

by a foreign state will be sufficient to invoke public policy. As Campbell McLachlan puts it,

the Lords were ‘at pains to avoid the suggestion that every breach of international law might

trigger the public policy exception.’56 The key language in the judgment establishing this

limitation is from Lord Steyn, who states that while public policy includes ‘flagrant breaches

of public international law … [i]t does not follow, however, that every breach of international

law will trigger the public policy exception. The present case is, however a paradigm of the

public policy exception.’57

Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness Under the Brussels and Lugano Conventions’ (2001) 36 Texas International Law Journal 539. There is also an extensive literature on international or transnational public policy. See e.g. Jacob Dolinger, ‘World Public Policy: Real International Public Policy in the Conflict of Laws’ (1982) 17 Tex Int’l LJ 167; DC Burger, ‘Transnational Public Policy as a Factor in Choice of Law Analysis’ (1984) 5 NYL Sch J Int’l & Comp L 370; HP Meidanis, ‘Public Policy and Ordre Public in the Private International Law of the EU: Traditional Positions and Modern Trends’ (2005) 30 European Law Review 95; Henri Rolin, ‘Vers un Ordre Public Réelment International’ in Hommage d’une génération de juristes au Professeur Basdevant (Paris: Pedone, 1960) 441; Mauro Robino-Sammartano, International Arbitration Law and Practice, 2d ed (The Hague: Kluwer Law International, 2001) at 505-506 (distinguishing domestic and international public policy in the context of international arbitration). 56 Campbell McLachlan, Foreign Relations Law (Cambridge, UK: Cambridge University Press, 2014) at 536 [McLachlan, Foreign Relations Law]. 57 Kuwait Airways, House of Lords, supra 1 at para 114 (emphasis added).

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Throughout their reasons, the Lords provide certain indications as to why Iraq’s

violation of international law made Kuwait Airways an appropriate case for the invocation of

public policy. Iraq’s breach of international law was clear,58 serious,59 gross,60 flagrant,61 and

fundamental.62 The Lords stress that the international law principles that Iraq breached were

‘clearly established,’63 of ‘fundamental importance,’64 and universally accepted.65 But, as

several scholars have argued, these limitations do not help to establish a clear line between

public international law violations that do and do not trigger public policy. Katherine Reece

Thomas argues that the case ‘gave no guidance’ on the ambit of the principle it articulates.66

Campbell McLachlan explains that the case ‘does not in itself provide a legal basis for

determining which acts of a foreign state in breach of international law might be regarded as

contrary to public policy, and which might not.’67 There is therefore an important doctrinal

58 Ibid at paras 22, 146, 149, 168. 59 Ibid at para 29. 60 Ibid at paras 29, 113. 61 Ibid at paras 20, 107, 113, 114, 115, 116, 148, 149, 191. 62 Ibid at para 29. 63 Or clear. Ibid at paras 26, 28, 110, 114, 139, 140, 144, 148. 64 Ibid at paras 20, 29. 65 The universality of the principles breached was emphasized in various ways: ‘universally condemned,’ see ibid at paras 29, 168; ‘universal consensus,’ see ibid at para 114; the Security Council resolutions were ‘universal,’ see ibid at para 149. 66 Katherine Reece Thomas, ‘The Changing Status of International Law in English Domestic Law’ (2006) 53:3 Nethl Int’l L Rev 371 at 377. 67 McLachlan, Foreign Relations Law, supra note 56 at 536. Similarly, Pippa Rogerson points out that although Kuwait Airways limited the use of public policy to ‘flagrant breaches’ of established rules of international law, this is a difficult category to define. Pippa Rogerson, ‘Kuwait Airways Corp v Iraqi Airways Corp: The Territoriality Principle in Private International Law – Vice or Virtue?’ (2003) 56:1 Curr Legal Probs 265 at 280. James Crawford notes that ‘the scope of this exception is uncertain.’ James Crawford, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2008) at 76. Martin Davies observes that the Lords limit the invocation of public policy to universally accepted principles of international law, but argues that the Lords do not define the concept of universality. Martin Davies, ‘Kuwait Airways Corp v Iraqi Airways Co: The Effect in Private International Law of a Breach of Public International Law by a State Actor’ (2001) 2 Melbourne Journal of International Law 523 at 534. See also Roger O’Keefe, ‘English Public Policy Internationalised – And Conversion Clarified Too’ (2002) 61:3 Cambridge LJ 499 at 502. Roger O’Keefe notes that the Lords limit the invocation of public policy to rules of public international law ‘of fundamental importance,’ but argues that this is an ambiguous phrase which ‘raises important questions’ about the connection between public policy and public international law. Adrian Briggs agrees that the case does not imply that all violations of public international law will constitute violations of public policy (although he interprets this ambiguity in the judgment in more positive terms). Briggs, supra note 52 at 965.

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ambiguity in Kuwait Airways, as it is unclear which breaches of public international law will

also trigger the use of the public policy exception.

This doctrinal ambiguity further complicates an effort to provide a rule of law reading

of the case. Intuitively, one would assume that if the case were guided by rule of law values,

any violation of public international law would justify invoking public policy, since this would

give legal effect to applicable rules of public international law. But on the Kuwait Airways

rule, courts cannot use public policy to refuse recognition to any violation of public

international law – rather, only some vaguely defined subset of violations of public

international law meet the public policy threshold. This implies that some foreign laws that are

in violation of public international law will be recognized and enforced by the forum court. It

is difficult to see how a standard that requires a court to apply a foreign law that is illegal under

public international law could be consistent with a rule of law approach to public policy,

particularly without a clear sense of what subset of violations of public international law rules

also count as public policy violations.

The doctrinal ambiguity at the heart of Kuwait Airways also seems to substantiate the

standard picture of public policy discussed in Chapter 1: that the public policy exception

constitutes an unfettered grant of discretion to judges, unconstrained by a coherent account of

when the exception should be used. If Kuwait Airways does not offer a reasoned approach to

distinguishing which violations of public international law will trigger public policy,68 judges

remain free to pick and choose among public international law violations as they see fit.

68 The idea that the law can only endorse reasoned distinctions is also a familiar requirement of the common law constitutionalist perspective. TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford: Oxford University Press, 2013) [Allan, Sovereignty of Law]; Mark D Walter, ‘Legality as Reason: Dicey, Rand, and the Rule of Law’ (2010) 55:3 McGill LJ 563; TRS Allan, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 LQR 271 [Allan, ‘Rule of Reason’].

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Part III: The Kuwait Airways Test and its Connection to Rule of Law Values

A. Rule of Law Language in Kuwait Airways

Despite these standard interpretations of the case, however, this part will argue that we

should read Kuwait Airways as having relied on common law constitutionalist/rule of law

reasoning to justify the use of the public policy exception. The first indication that Kuwait

Airway may be consistent with a common law constitutionalist reading is Lord Hope’s direct

reference to the rule of law in his judgment. Lord Hope justifies the use of public policy in the

case by stating that ‘the judiciary cannot close their eyes to the need for a concerted,

international response to [threats] to the rule of law in a democratic society. Their primary role

must always be to uphold human rights and civil liberties. But the maintenance of the rule of

law is also an important social interest.’69

Lord Hope states here that part of courts’ objective in using the public policy exception

is to uphold the rule of law. This is an explicit endorsement of the approach to the exception

that I have advocated for thus far. But it is still somewhat unclear why Lord Hope thinks that

the ambiguous approach to public policy violations taken in Kuwait Airways is consistent with

or required by the rule of law. To figure out what connection the case has to rule of law values,

we must first clarify the doctrinal holding in the case.

B. Resolving the Doctrinal Uncertainty in Kuwait Airways

We can begin to address the doctrinal ambiguity in Kuwait Airways by focusing on the

precise elements of the test established by the Lords as to which violations of public

69 Kuwait Airways, House of Lords, supra note 1 at para 145. Admittedly, this language is a bit strange from the perspective of common law constitutionalism, since it might be read as contrasting the protection of fundamental rights with the protection of the rule of law – which I argued in Chapters 2 and 3 were fundamentally connected in the common law tradition. However, another way to read this passage is that the rule of law goes beyond the idea of protecting fundamental rights to include other types of legality concerns, which I argue below is entirely consistent with the common law constitutionalist approach.

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international law should trigger the use of the public policy exception. The Lords emphasized

two aspects of Iraq’s breach of international law that justified invoking public policy. First, the

Lords discussed the nature of the international law principles at stake in the case, emphasizing

the centrality and importance of the principles that Iraq violated: most crucially, Iraq violated

the jus cogens and UN Charter prohibition on the use of force against the territorial integrity

of another state, and Iraq ignored Security Council resolutions that declared its actions illegal.70

The Lords referred to the norms breached by Iraq as ‘rules of international law of fundamental

importance.’71 They discussed the clarity of the norms that Iraq violated, repeatedly noting that

Iraq breached ‘clearly established rules [or principles] of international law.’72 They also

stressed the universal consensus on the nature of the principles at stake.73 The Lords thus

indicated that the first prong of the test for when a violation of public international law is also

a violation of public policy is whether the type of public international law norm that has been

breached is one which is fundamental, clearly established, and universally accepted.

The second limitation on the use of public policy that the Lords imposed concerns the

nature of the breach of public international law. The Lords continually emphasized that Iraq’s

breach of international law was ‘gross,’74 ‘flagrant,’75 ‘serious,’76 ‘fundamental,’77 ‘grave,’78

‘clear,’79 and ‘plain beyond dispute.’80 The Lords therefore imposed limiting conditions on the

type of breach of public international law that triggers the public policy exception – the breach

70 Ibid at paras 22, 23, 29, 113, 114, 191. 71 Ibid at paras 20, 29. 72 Ibid at paras 28, 110, 114, 139, 140, 148. 73 See supra note 65. 74 Kuwait Airways, House of Lords, supra note 1 at paras 29, 113. 75 Ibid at paras 20, 107, 113, 114, 115, 116, 148, 149, 191. 76 Ibid at para 29. 77 Ibid. 78 Ibid at para 149. 79 Ibid at paras 22, 146, 149, 168. 80 Ibid at paras 20, 26, 140, 143.

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in question must be flagrant or gross. Kuwait Airways thus established a two-pronged test: To

invoke the public policy exception, (1) the public international law norm that has been

breached by foreign law should be fundamental, clearly established, and universally accepted;

and (2) the foreign state’s breach of the norm should be flagrant or gross. When a foreign law

breaches international law in a manner that meets these two conditions, the foreign law can be

refused recognition as a matter of public policy by the forum state.81

As discussed above, scholars have suggested that the threshold for when a violation of

international law amounts to a public policy violation in Kuwait Airways is vague and

uncertain. However, when the Lords’ reasons are set out in the way I have suggested, the test

bears a striking resemblance to the requirements of Article 41 of the Draft Articles of State

Responsibility,82 as Lord Bingham has similarly observed in a House of Lords case decided

subsequent to Kuwait Airways. The Draft Articles, produced by the International Law

Commission (ILC) over decades of work beginning in the 1950s and released in 2001,

represent the codification and ‘progressive development’ of the customary international law

of state responsibility.83 Article 41 sets out the appropriate response for third party states to

81 However, merely identifying these two prongs does not solve the doctrinal ambiguity in Kuwait Airways, as scholars have argued that the terms that the court uses in each of the prongs are not clear. See supra note 67. 82 See the discussion by Lord Bingham in A(FC) and others v Secretary of State for the Home Department (No 2), [2005] UKHL 71, adopting this gloss on the holding in Kuwait Airways at para 34. Lord Bingham’s interpretation of Kuwait Airways as a means of giving effect to the requirements of Article 41 of the Draft Articles of State Responsibility is not disputed in the speeches of the other Lords hearing the case – which included Lords Nicholls, Hope, and Hoffman, three of the Lords who heard Kuwait Airways! 83 See generally James Crawford, State Responsibility: The General Part (Cambridge, UK: Cambridge University Press, 2013) [Crawford]. The rules of state responsibility are often referred to as the ‘secondary rules’ of public international law. In contrast to the ‘primary rules’ of international law, which define what acts are internationally wrongful, the rules of state responsibility delimit legal responsibility for internationally wrongful acts, including the appropriate responses by the injured state and third party states. Ibid at 61; Arthur Watts, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law 15 at 16.

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take in response to another state’s ‘serious’ breach of a peremptory norm, as defined in Article

40. The two articles read (in relevant part)84 as follows:

Article 40. Application of this chapter 1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Article 41. Particular consequences of a serious breach of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.85

When discussing Kuwait Airways, Lord Bingham suggests in passing that the test in Kuwait

Airways tracks the language of Article 41(2), first clause, which requires states to refuse to

‘recognize as lawful a situation created by a serious breach’ of peremptory norms. Lord

Bingham does not develop this suggestion. But if we unpack the various elements of Article

40 and 41(2) and compare them to the two-pronged test in Kuwait Airways, we can see that

Lord Bingham’s suggestion holds the key to clarifying the doctrinal test in Kuwait Airways.

Article 40 and 41(2) provide that states must refuse recognition of a breach of a

peremptory norm of international law, when the breach is serious.86 A peremptory or jus

84 I exclude Article 41(3) which is not relevant to this inquiry and which reads: ‘3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.’ 85 Responsibility of States for Internationally Wrongful Acts, annexed to UN Doc A/RES/56/83 of 12 December 2001 [Draft Articles]. 86 The ILC’s commentary on Article 40 indicates that a peremptory norm should be defined in line with the Vienna Convention on the Law of Treaty’s widely accepted definition of the term. ILC Commentary to the

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cogens norm is a non-derogable, mandatory international law obligation.87 Examples of

peremptory norms include the international prohibitions on aggression, slavery, and

genocide.88 Peremptory norms are also obligations erga omnes – obligations owed by each

state towards the international community as a whole.89 Article 40(2) defines the concept of a

‘serious’ breach. A breach can be serious if it is either ‘gross’ or ‘systematic’ or both, which

is described in the commentary as follows:

To be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term ‘gross’ refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule. The terms are not of course mutually exclusive; serious breaches will usually be both systematic and gross. Factors which may establish the seriousness of a violation would include the intent to violate the norm; the scope and number of individual violations; and the gravity of their consequences for the victims.90

If both of these two requirements are met – the breach in question is of a jus cogens

norm, and it meets the threshold of seriousness, defined as systematic, gross, or flagrant – there

is a duty on all other states under Article 41(2) to refuse to recognize any implications of the

breach as lawful. The concept of ‘recognition’ referenced in Article 41, as James Crawford

argues, is an expansive one.91 While the term is often associated, as Crawford points out, with

Articles on State Responsibility, reprinted in ‘Report of the International Law Commission of the 53rd Session’, UN Doc A/56/10 [ILC Commentary]. 87 The Vienna Convention defines a peremptory norm as one that is ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331, Pt V, para 53 [VCLT]. 88 ILC Commentary, supra note 86, art 40. 89 Ibid. Note, though, that there is an extensive scholarly debate about the relationship between jus cogens and erga omnes norms and the extent to which they overlap. See e.g. See Michael Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic Journal of International Law 211 [Byers]. However, in the context of Article 40, the ILC seems to assume that the concepts are coterminous, because they define peremptory norms as both jus cogens and erga omnes. 90 ILC Commentary, supra note 86, art 40. 91 Crawford, supra note 83 at 381. As a historical matter, the doctrine of non-recognition was originally invoked in the context of illegal acquisition of territory through the use of aggressive force – what Crawford has referred to as the ‘archetypal example of the operation of non-recognition.’ Ibid at 382. The doctrine of non-recognition has its roots in the Stimson Doctrine, developed during the 1931-1932 Manchurian crisis. The US refused to

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the recognition of a state or a government,92 it is not limited to these contexts. Instead,

recognition is a ‘broader concept.’93 As Orakhelashvili argues, ‘the duty of non-recognition of

the breaches of peremptory norms extends not only to State-creation but to every kind of

illegality. It refers to the general duty to refrain from acts and actions, or from taking attitudes,

that imply the recognition of the acts offending against peremptory norms in a variety of

international legal relations.’94 Thus, as Crawford concludes, this means that particular acts of

state (when they entail a serious violation of a peremptory norm) can be refused recognition.95

These elements of the test in Article 41(2) for non-recognition closely mirror the test

set out in Kuwait Airways. Take the first requirement from Kuwait Airways – that the norm

must be fundamental, clearly established, and universally accepted. As Campbell McLachlan

recognize Japan’s acquisition of Chinese territory by force as legal, a position that was joined by a large majority of the members of the League of Nations, thus establishing the practice of refusing to ‘admit the legality’ of a situation that violates a fundamental norm of international law (in this case, territorial independence as required by the newly established Kellogg-Briand pact). See also GA Res 2625 (XXV) and Nicaragua v United States of America [1986] ICJ Reports 14. The obligation to refuse to recognize territory acquired through aggression is also formalized by Article 5(3) of the General Assembly’s Definition of Aggression. GA Res 3314(XXIX) 14 December 1974, Annex. No such acquisition of territory ‘is or shall be recognized as lawful.’

In the post-war era, the doctrine has also been repeatedly invoked in the self-determination context. For example, in the ICJ’s opinion in the Namibia case (Legal Consequences for States of the Continued Presence of South Africa in Namibia, [1971] ICJ Reports 16), the Court held that South Africa’s continued repressive occupation of Namibia following the termination of its mandate was illegal and therefore could not be recognized by any state; similar declarations by UN bodies were made in the context of Southern Rhodesia and the Bantustans in South Africa. Similarly, the ICJ’s 2004 opinion in the Wall in the Occupied Palestinian Territory holds that states are under an obligation ‘not to recognize the illegal situation resulting’ from Israel’s occupation, because, inter alia, Israel had violated the Palestinian people’s right to self-determination: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Reports 136. 92 Crawford, supra note 83 at 381. 93 Ibid. Brownlie also makes this argument. As he remarks, ‘There is a particular oddity about the usual treatment of “recognition” as a subject in the textbooks. The topic is nearly always reviewed exclusively with reference to “recognition” of States and government (and perhaps also belligerency and insurgency). While there is some practical justification for this approach, the impression conveyed is artificial and unhelpful.’ Ian Brownlie, ‘Recognition in Theory and Practice’ (1982) 53 BYIL 197 at 201-202. 94 Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006) at 282 [Orakhelashvili]. 95 Crawford, supra note 83 at 381. Despite Crawford’s construction of the duty, this does not mean that the notion of non-recognition has escaped criticism. See infra note 209. However, this interpretation is also supported by the text of Article 41(2), which specifies that states shall not recognize as lawful ‘a situation created by a serious breach.’

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has pointed out,96 the definition of peremptory or jus cogens norms articulated in Article 40 of

the Draft Articles seems to fit these limitations from Kuwait Airways perfectly; what is ‘a rule

of international law of fundamental importance’ if not a jus cogens norm?97

The second prong of the test set out in Kuwait Airways also maps on to the requirements

of Article 41(2). The Lords repeatedly emphasize that the breach in question must be flagrant,

gross, serious, grave, or clear for public policy to be invoked, and this mirrors exactly the

language used in Articles 40 and 41. Iraq’s conduct clearly met the ‘seriousness’ requirement,

as the Lords determined that its breaches of international law were gross and flagrant.

Finally, the consequence of non-recognition in Kuwait Airways tracks the approach set

out in Article 41(2). In Kuwait Airways, the Lords held that Iraqi Resolution 369 cannot be

recognized as legal for any purpose.98 Upon this basis they invoke the public policy exception

to deny recognition. This choice to refuse recognition is consistent with the language of Article

41(2), which states that ‘[n]o state shall recognize as lawful a situation created by a serious

breach’ of a peremptory obligation.

Due to this striking similarity in these legal tests, we can read Kuwait Airways as

effectively adopting the requirements of non-recognition of serious violations of peremptory

norms (reflected in Article 41(2) of the Draft Articles of State Responsibility).99 Thus the

96 McLachlan, Foreign Relations Law, supra note 56 at 537-538. 97 Indeed, the requirement in Kuwait Airways that the norm be clearly established and universally accepted fits the Vienna Convention’s Article 53 definition of a jus cogens norm (which states that the norm must be ‘accepted and recognized by the international community of States as a whole’). Moreover, this reading fits the particulars of Kuwait Airways itself: there is no question that Iraq’s conduct violated jus cogens norms prohibiting the use of force, as the Lords note at various points. 98 Kuwait Airways, House of Lords, supra note 1 at paras 117, 160. 99 Other evidence also supports this connection. Lord Bingham’s speech in A(FC) and others v Secretary of State for the Home Department (No. 2) is clearly the leading support for this conclusion; his connection between Kuwait Airways and Article 41 was forged in a leading judgment that was accepted by three Lords who had also sat on Kuwait Airways. Another piece of evidence connects Kuwait Airways to Article 41(2). In the ILC’s commentary on Article 41(2), it provides an example of the type of non-recognition required by Article 41(2). The sole example it provides is the obligation on states not to recognize Iraq’s invasion of Kuwait as legal, particularly given Security Council Resolution 662, which required states ‘not to recognize that annexation and to refrain

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Kuwait Airways holding can be read as follows: public policy should be invoked to refuse

recognition of foreign law when the foreign law in question represents a serious, gross, or

flagrant breach of a peremptory norm of public international law – as these terms are defined

under customary international law, codified in the Draft Articles of State Responsibility.

Reconstructing the Kuwait Airways test in this fashion thus addresses the doctrinal ambiguity

in the case.100

from any action or dealing that might be interpreted as a recognition of it, whether direct or indirect.’ Security Council Resolution 662 and its non-recognition requirement is, of course, cited by the Lords in Kuwait Airways, and thus the Lords may have felt that Article 41(2) required non-recognition of any aspect of Iraq’s invasion. ILC Commentary, supra note 86, art 41(2).

My claim is not that the Lords intended to adopt the test set out in Article 41(2). Rather, my view is that the best reading of Kuwait Airways is that its doctrinal test tracks that of Article 41(2) and the customary obligation of non-recognition it codified, given the very close substantive connection between the two. 100 As the ILC’s commentary on Articles 40 and 41 notes, there is a long jurisprudential history available that courts can draw on when deciding whether a foreign law has breached a peremptory norm. While there is less jurisprudence surrounding the concept of a ‘serious’ breach, the ILC’s commentary offers a definition that guides the public policy inquiry.

This analysis can also make sense of the range of normative motivations that scholars have identified in the case. Recall that scholars have argued that the Lords connect violations of public international law to public policy for a number of reasons, including a concern for international order, international values, and the UK’s foreign policy. See supra Part II.A. When the Kuwait Airways test is connected to the Article 41(2) standard, it becomes clear why all three rationales would be connected to refusing to recognize serious breaches of peremptory norms. Peremptory norms are widely thought to represent the fundamental normative commitments of the international community, that are also necessary for the preservation of international order. Stefan Kadelbach, ‘Jus Cogens, Obligations Erga Omnes and Other Rules: The Identification of Fundamental Rules’ in Christian Tomuschat & Jean-Marc Thouvenin, eds, The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Leiden: Nijhoff, 2006) 21 at 27; Byers, supra note 89 at 211; André de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (The Hague: Kluwer, 1996 ) at 53. Thus using public policy to refuse to recognize serious breaches of such norms can readily be explained as a desire to protect and safeguard the fundamental values and peace of the international community. For example, Helmut Philipp Aust has argued that the ability of third party states to refuse to recognize breaches of peremptory norms through Article 41(2), thus avoiding complicity in such breaches, is essential for the maintenance of fundamental international norms and the ‘international public order.’ Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge, UK: Cambridge University Press, 2011) ch 7. Lauterpacht also argues for this position. See H Lauterpacht, Recognition in International Law (Cambridge, UK: Cambridge University Press, 1947) at 420-425 [Lauterpacht, Recognition]. The connection to Article 41(2) also explains why Kuwait Airways could be motivated by the UK’s foreign policy. The article places obligations on all third party states to respond to serious breaches of peremptory norms through non-recognition. Presumably the UK’s foreign policy normally includes complying with its international obligations, and thus it makes sense that the court in Kuwait Airways would understand the use of public policy to refuse to recognize Resolution 369 as motivated, at least in part, by the UK’s foreign policy.

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C. The Rule of Law Values Underlying the Limits in the Kuwait Airways Test

While this approach may resolve the doctrinal ambiguity in Kuwait Airways, it does

not address the obstacles to a rule of law reading of Kuwait Airways, as it does not tell us why

only some breaches of public international law will trigger public policy. As discussed above,

this appears problematic from a rule of law perspective, because we would assume that if

Kuwait Airways truly sought to give effect to the rule of law, that all breaches of public

international law would trigger public policy.101 Why, then, should the public policy

exception’s use be limited to serious breaches of a peremptory norm by a foreign state?

To help us answer this question, we can look to the history of the development of

Article 41(2) to explore why the law of state responsibility imposes limits on when third parties

should refuse to recognize the consequences of public international law breaches by other

states. This analysis will help bring the rationales for the ‘seriousness’ and ‘peremptory norm’

limits on the non-recognition duty of third parties to light. I argue that both of these limitations

can be explained by two foundational rule of law values that are at the heart of the common

law constitutionalist approach to the rule of law: (1) guarding against arbitrary exercises of

power; and (2) recognizing the importance of judicial resolution of disputes and containing the

problems inherent in self-judging regimes.

As I argued in Chapter 2, at the heart of the common law constitutionalist account of

the rule of law is the requirement that the law protect people from mere arbitrary exercises of

power or force.102 As Dicey (a progenitor of the common law constitutionalist movement) puts

it, the rule of law ‘means in the first place, the absolute supremacy or predominance of regular

101 And additionally, it is unclear how using public policy to refuse to apply law that violates public international law is connected to the common law constitutionalist account of the rule of law, particularly as I described it in Chapter 2. 102 See Chapter 2 above, describing the centrality of this idea to TRS Allan’s work.

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law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness,

of prerogative, or even of wide discretionary authority on the part of the government.’103 This

core intuition regarding the rule of law, as we shall see, has been central to the creation of the

third party right to respond to breaches of peremptory norms of public international law, under

the law of state responsibility.

A related rule of law norm is that disputes should be resolved through an independent

judiciary, not through self-judging.104 Indeed, the existence of an independent authority to

resolve disputes is understood to be a hallmark of a rule of law-based system.105 At the

international level, there is typically no judiciary to determine when states have breached

international law, and thus there must be strict limits on when states are permitted to take action

in response to a perceived breach of international law by other states.106

a. Curbing Arbitrary Power in the Enforcement of Peremptory Norms

When state representatives and scholars began developing the law of state

responsibility in a programmatic way, the proposed framework initially did not provide any

means for third parties to respond to internationally wrongful acts. In addition, the law of state

responsibility initially did not distinguish between different types of internationally wrongful

103 AV Dicey, Introduction to the Study of the Constitution (Indianapolis, IN: Liberty Fund, 1915) at 110. See also Allan, Sovereignty of Law, supra note 68 at 93 (‘The rule of law is a bulwark against any assertion of arbitrary power.’) 104 See discussion of the way in which third party adjudication is made central to the rule of law on TRS Allan’s account in Chapter 2. See e.g. also David Dyzenhaus, ‘Process and Substance as Aspects of the Public Law Form’ (2015) 74:2 Cambridge LJ 284 at 296 (discussing why this was important for Fuller); Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92:2 Harv L Rev 353 [Fuller]; Allan, Sovereignty of Law, supra note 68. 105 Allan, Sovereignty of Law, ibid. However, this does not mean that international law is not a legal system; see David Dyzenhaus, ‘Hobbes on the International Rule of Law’ (2014) 28:1 Ethics & International Affairs 53. 106 For a conception of how legality operates in the international system and the rule of law remains plausible, on a Fullerian account, see Jutta Brunée & Stephen J Toope, Legitimacy and Legality in International Law (Cambridge, UK: Cambridge University Press, 2010).

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acts – the notion of a peremptory norm from which no derogation is possible (a jus cogens

norm) had not yet been developed.

The contemporary origins107 of the law of state responsibility can be traced to the

influential writings of Italian scholar and judge Dionisio Anzilotti108 at the beginning of the

twentieth century.109 Under Anzilotti’s conception of state responsibility, which was widely

accepted and thought to be representative of nineteenth century practice,110 state responsibility

was an entirely bilateral matter.111 If one state acted in breach of its obligations under

international law, the only state that could make a claim for reparations, thus invoking the state

responsibility of the author state, was the state that had been injured by the alleged breach.

Under this conception, third party states – those who were not directly injured by the

breach – had no legal standing to respond under the law of state responsibility. This was the

case, Anzilotti argued, for all breaches of international law. The law of state responsibility was

undifferentiated;112 all breaches were understood as merely bilateral in nature, permitting a

tort-type claim from the injured state but no further response.

107 There was, of course, a lengthy tradition of state responsibility before the writings of Anzilotti. See Crawford, supra note 83 at 3-22; Georg Nolte, ‘From Dionisio Anzilotti To Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 13:5 EJIL 1083 [Nolte]. 108 Anzilotti was a judge of the Permanent Court of International Justice from 1922-1946. See Jose Maria Ruda, ‘The Opinions of Judge Dionisio Anzilotti at the Permanent Court of International Justice’ (1992) 3 EJIL 100. 109 See e.g. Dionisio Anzilotti, Cours de droit international, trans Gilbert Gidel, 3d ed (Paris: Recueil Sirey, 1929); Dionisio Anzilotti, Teoria generale della responsabilita dello state nel dirrito internazionale (Florence: 1902). For a discussion of Anzilotti’s theory of state responsibility, see Pierre-Marie Dupuy, ‘Dionisio Anzilotti and the Law of International Responsibility of States’ (1992) 3 EJIL 139. For a general discussion of his positivist approach to international law, see Giorio Gaja, ‘Positivism and Dualism in Dionisio Anzilotti’ (1992) 3 EJIL 123. 110 Nolte, supra note 107. 111 Ibid; Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) Recueil des cours 217 [Simma]; James Crawford, International Law as an Open System (London: Cameron May, 2002) at 29. 112 This is what Dupuy has referred to as the ‘unity of state responsibility.’ Pierre-Marie Dupuy, ‘The International Law of State Responsibility: Revolution Or Evolution?’ (1989) 11 Mich J Int’l L 105 at 106.

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Those in support of the classical model justified this bilateral and undifferentiated

conception of state responsibility by pointing to the horizontal nature of interstate relations.113

In a Westphalian system of equal sovereign states, there is no vertical, centralized, public

authority that can determine whether some community interest has been violated.114 Without

a centralized authority, the idea of a ‘public’ violation of international law – a violation that

engages the interests of the international community as a whole – simply has no meaning. If

we cannot determine whether there has been a violation of the international community’s

interests, there is no means by which non-injured states could be authorized to intervene

(acting, for instance, pursuant to the public authority of the international community as a

whole). Instead, the fundamentally horizontal structure of international relations means that

only private wrongs can be committed and thus only private remedies are available. Thus states

are authorized to respond to breaches of their own rights but not those of other states. The law

of state responsibility in the Westphalian system relies on states to be self-judging, and to act

only when their ‘private’ rights have been violated.115

This position came under strong criticism in the mid-twentieth century, following the

atrocities of the First and Second World Wars, in the work of Hersch Lauterpacht,116 Roberto

Ago,117 Wilhelm Riphagen,118 and others. Ago, beginning with a 1939 Hague lecture,119 argued

113 See Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994) at 1. 114 See Sir Robert Jennings & Sir Arthur Watts, Oppenheim’s International Law, 9th ed (discussing the position and equality of states in international law). 115 An excellent restatement of this view was made by leading American international lawyer Elihu Root, in his capacity as president of ASIL: ‘Up to this time breaches of international law have been treated as we treat wrongs under civil procedure, as if they concerned nobody but the particular nation upon which the injury was inflicted and the nation inflicting it.’ Elihu Root, The Outlook for International Law (Boston, MA: World Peace Foundation, 1916) at 12. 116 H Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green and Co, 1927); H Lauterpacht, ‘Règles générale du droit de la paix’ (1937) Receuil de cours. 117 See Nolte, supra note 107; Crawford, supra note 83, ch 1. 118 Ibid. 119 Roberto Ago, ‘Le délit international’ (1939) 68 Receuil de cours 419.

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persistently for the following four decades that Anzilotti’s bilateral and undifferentiated

conception of state responsibility did not conform to the developing reality of state practice.120

Not all international law obligations are understood by states to be merely bilateral or inter se.

Instead, some international law obligations are owed to the international community of states

as a whole. The development of the concept of jus cogens norms, instantiated in Article 53 of

the Vienna Convention of the Law of Treaties,121 and the affirmation of the existence of erga

omnes obligations in the ICJ’s Barcelona Traction opinion, supported Ago’s argument that

some international obligations are conceptualized as being owed to the ‘international

community as a whole.’122 In his position as the first ILC Special Rapporteur on the Law of

State Responsibility, Ago pushed for the development of a differentiated regime as a part of

the Draft Articles that would treat violations of ‘community interests’ differently than purely

inter se obligations.123 The second Special Rapporteur, Wilhelm Riphagen, continued this

project, and argued that violations of these ‘community interests’ should entail an obligation

120 See Marina Spinedi, ‘The Legislative History’ in Joseph HH Weiler, Antonio Casses, & Marina Spinedi, eds, International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin, New York: de Gruyter, 1988) 7 at 22 [Spinedi] [Weiler et al]; see also Nolte, supra note 107. As Berhard Graefrath argued during the development of this novel conception, ‘Today it is not possible seriously to dispute that it makes a difference under international law whether a State is not fulfilling its obligation to pay the interests for a loan or whether it launched a war against its neighbor, whether a State is not implementing its obligation to enact a law against racial discrimination or whether it imposed an apartheid regime in illegally occupied territories. Obviously, there are different categories of violations of international law which entail different legal consequences.’ B Graefrath, ‘International Crimes – A Specific Regime of International Responsibility of States and its Legal Consequences’ in Weiler et al, ibid, 161 at 161-2 [Graefrath]. 121 VCLT, supra note 87, art 53. 122 Case Concerning Barcelona Traction, Light, and Power Company, Ltd, [1970] ICJ 1 [Barcelona Traction]. 123 In 1976, Ago proposed a regime of differentiated responsibility in the law of state responsibility through the concept of ‘state crimes,’ by which third parties could respond to a ‘serious’ breach of ‘an international obligation so essential for the protection of fundamental interests in the international community that its breach is recognized as a crime by that community as a whole.’ While the notion of an international crime proved extremely controversial and was ultimately dropped from the Draft Articles, the notion that serious breaches of erga omnes obligations demanded a response from all members of the international community – including a duty of non-recognition – would ultimately be maintained in Articles 40 and 41.

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of non-recognition on the part of third party states124 – what would eventually become Article

41(2).

The development of this differentiated conception, as Bruno Simma has argued, was a

response to the problematic nature of the ‘every-man-for-himself’ bilateral model of state

responsibility.125 Under the bilateral regime, only the state injured by a breach could respond.

This left international law subject to ‘a favourable distribution of power’;126 for a breach to be

remedied, the injured state needed to have sufficient power to respond. But for breaches of the

international community’s most fundamental values, owed to the international community as

a whole, this was normatively inadequate,127 because it left the enforcement of erga omnes

obligations subject to a deeply unequal distribution of power in the international system.128

To put it another way, a purely bilateral enforcement regime is inconsistent with the

rule of law. It makes the enforcement of erga omnes principles – obligations that are owed to

the international community as a whole – contingent on the particular means available to one

particular injured state. This is an intolerable result from the perspective of the rule of law as

it sublimates legal principle to power and leaves the international community without a

remedy. Thus it was a fundamental rule of law consideration – the desire to ensure that the

enforcement of fundamental principles of international law were not subject to an arbitrary

124 In 1980, Riphagen proposed a non-recognition article that would require states ‘not to recognize as legal the situation created by [an international crime].’ Article 6, 1980 proposal. 125 Simma, supra note 111 at 233 (quoting Prosper Weil). 126 Ibid. 127 See discussion in George Abbi-Sab, ‘The Concept of “International Crimes” and its Place in the Contemporary International Law’ in Weiler et al, supra note 120, 141 at 143. 128 Ted L Stein, ‘Observations on “Crimes of State”’ in Weiler et al, ibid, 194 [Stein]: ‘An international crime involves the violation of an obligation “essential for the protection of the fundamental interests of the international community.” Correspondingly, the international community has a strong interest in deterring the commission of such a crime and bringing about the termination of the illegal conduct. Since the victim or potential victim State may not have sufficient power to accomplish these objectives by the adoption of unilateral measures, we look for ways to multiply the coercive power arrayed against the wrongdoer. Given the weakness of centralized community mechanisms that might serve this purpose, we are drawn to decentralized but multilateral, sanctioning systems, i.e. third party sanctions.’

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distribution of power – that drove the development of a differentiated regime, in which a breach

of peremptory norms would justify a legal response from third party states.

b. The Problem with a Self-Judging Legal Regime and the Need for a Restrictive Standard for Third Party Responses

Yet despite these developments in the content of international law, as a procedural

matter, the Westphalian state system remains primarily129 a horizontal and self-judging

regime.130 This self-judging nature of our system of states generates a separate and distinct rule

of law concern that was repeatedly invoked by states and scholars alike during the debates over

the content of the law of state responsibility.131 In the absence of an international judiciary

declaring which internationally wrongful acts can justify a third party response, states will

have to decide for themselves whether to respond to a breach.132 And if a wide range of

129 Of course, there are many contemporary exceptions, such as the World Trade Organization’s Dispute Settlement Body and the International Court of Justice. But these institutions do not cover the field, and states generally retain the ability to judge when state responsibility has been engaged. 130 Graefrath, supra note 120 at 163, 168: ‘[I]n international law we continue to have subjects with equal rights and … there exists no superior central power… To assume a criminal international responsibility of States would contradict international reality where we are faced with sovereign States of a different social order. The result of such an interpretation would only be to burden the institute of international responsibility with the instruments and the dogmatic and sophisticated vocabulary of penal law. It would open the door for political abuse. … The independent application of reprisals by States not directly affected by an international crime, outside the scope of collective self-defence and independent of, or contrary to, decision of the Security Council cannot be accepted. This could easily be misused as a pretext for arbitrary acts, which actually are breaches of international obligations and would endanger international legality.’ 131 This point is neatly put in the context of a discussion of third party reprisal in the work of Michael Akehurst: ‘In international disputes of a legal character, both sides usually accuse each other of breaking international law; if third States were able to intervene, there is a serious danger that they would be biased and that they would tend to support their allies, rather than the side which was objectively in the right. The result would be more likely to weaken international law than to strengthen it; and it would certainly cause a very disturbing increase in international tension.’ Michael Akehurst, ‘Reprisals by Third States’ (1970) 44 Brit YB Int’l L 1 at 15-6. See also Martti Koskenniemi, ‘Solidarity Measures: State Responsibility as New International Order?’ (2000) 72 Brit YB Int’l L 337. Koskenniemi is also live to the possibility of unilateral abuse in Chapter 6 of Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge, UK: Cambridge University Press, 2001) [Koskenniemi, Gentle Civilizer]. 132 ‘Some of the States who opposed the introduction of the category of international crimes into the Draft Articles of State Responsibility (United States, France and Australia) expressed the opinion that such a category of wrongful acts could not be established without at the same time establishing a system for the judicial settlement of disputes…. Italy maintained that “the determination of the existence of an international crime could be entrusted only to a supreme international political or judicial body.”’ Spinedi, supra note 120 at 77; see also her discussion regarding the concern with the absence of a judiciary and the possibility of abuse at 113.

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internationally wrongful acts can justify a third party response, this leaves the law of state

responsibility open to the possibility of unilateral abuse for political purposes.133 This spectre

caused states and scholars to push for a highly restricted standard for third party responses, in

which only a widely-acknowledged or clear breach of a jus cogens (and thus universally

recognized legal norm, under VCLT Article 53), erga omnes (and thus owed to the

international community) norm could justify a third party response under the law of state

responsibility.

c. Rule of Law Principles in Action: The Text of Article 41(2) and Kuwait Airways

The result of these two basic rule of law principles – the need to curb arbitrary

enforcement of the law, and the concern about self-judging – can be seen in the text of Article

41(2).134 The obligation of non-recognition of jus cogens breaches is an outgrowth of the idea

that all members of the international community should and must be able to respond to

international law violations when the community’s interest is truly implicated, as a matter of

133 John Dugard, in the context of non-recognition by the Security Council, argues that it should be limited to peremptory norms, not just any violation of international law, because of the possibility of political abuse: John Dugard, Recognition and the United Nations (Cambridge, UK: Grotius Publications Ltd, 1987) at 163. Bruno Simma strikes a similar note of concern: ‘The present author accepts as a sign of progress that the extreme bilateralism of traditional international law is now being tempered, at least in theory, by the manifestations of “community interest” discussed in this paper. But at the same time it is a reason for concern that these new conceptions are being grafted upon international law without support through, and any attempt at, adequate institution-building. If the gap between advances in substance and lack of institutional progress is allowed to widen, what we might witness in the future could likely be further developments away from bilateralism but merely passing (or bypassing) multilateralism and finally ending up in unilateralism.’ B Simma, ‘International Crimes: Injury and Countermeasures’ in Weiler et al, supra note 120, 283 at 315 [Simma]. Other scholars have identified other problems with a wide-ranging standard. Stein, supra note 128 at 199: ‘[A] general right might create a class of international busybodies, regularly involving themselves in matters genuinely within the domestic jurisdiction of other States. Moreover, the absence of a “State directly injured” means that there may be no single State with whom the alleged wrongdoer can deal, knowing that a settlement reached with that State will terminate the measures against it. One of the virtues of the classic bilateral structure of international law problems was that the State against whom a complaint had been made knew exactly who it needed to deal with in order to put an end to the controversy.’ 134 Simma, ibid at 294: ‘What is needed … in the current codification effort is a reconciliation of what the present author would call “natural bilateralism” in international law with those requirements of “community interest” which modern international experience has shown to be necessary.’

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the rule of law.135 But the highly restrictive and universally recognized nature of these

norms,136 and the additional requirement that the breach in question be ‘serious,’137 is a result

of a rule of law principle that cautions against abuse of legal principles for political, unilateral

purposes, in the context of a self-judging legal system.138 We can therefore understand both

the role and the limits of Article 41(2) as being motivated by a concern for the rule of law.

We see echoes of these two rule of law values in Kuwait Airways itself, reinforcing the

argument that the judgment tracks the standard for non-recognition codified in Article 41(2).

Lord Nicholls emphasizes that the breach in question ‘is a matter of deep concern to the world-

wide community of nations,’139 drawing attention to the erga omnes nature of the violation.

Lord Steyn, for his part, highlights the fact that the norms breached by Iraq were jus cogens in

nature. The Lords repeatedly emphasize the universality of both the norms breached and the

acknowledgement of Iraq’s breach.140

Out of a concern for unilateralism (and thus the political abuse of the principle of non-

recognition), Lord Steyn was careful to argue that determining that Iraq’s action was contrary

to public policy was not a merely parochial or unilateral decision on the part of the English

135 For a discussion of the connection between non-recognition and the rule of law, see Lauterpacht, Recognition, supra note 100. 136 Some scholars have argued that more than just jus cogens, erga omnes obligations should be subject to a non-recognition obligation. See e.g. Andreas L Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation’ (2005) 74 Nordic Journal of International Law 297 at 315; Christian J Tams, ‘All’s Well that Ends Well? Comments on the ILC’s Articles on State Responsibility’ (2002) 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 759 at 774. 137 According to Spinedi, this position was advocated for by France and Greece, who wanted to restrict which breaches would count. Spinedi, supra note 120 at 74. 138 The word ‘serious’ was included in every draft of the Draft Articles. Although criticized by some for being vague, no debate on whether to remove the term took place. 139 Kuwait Airways, House of Lords, supra note 1 at para 29. 140 Ibid at paras 20, 21, 22, 23, 29 (universal condemnation); para 107 (prompt and comprehensive international response); para 114 (universal acceptance of Charter; universal consensus on the illegality of Iraq’s aggression; jus cogens nature of principles violated); para 149 (‘the facts are clear, declarations by the Security Council were universal and unequivocal’); para 168 (‘universal international condemnation’).

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court.141 As he observes, ‘[t]his conclusion on English public policy does not reflect an insular

approach,’ since ‘the public policy condemning Iraq’s flagrant breaches of public international

law is [an] illustration of … a truly international public policy in action.’142 For Lord Steyn,

this ‘international dimension’ reinforced the decision to use public policy in the case.143

Similarly, Lord Hope argues that normally it would have been inappropriate to give

effect to public policy in a case with so few connections to England, if the public policy norm

in question was ‘purely domestic or parochial in character.’144 But since Iraq’s actions were

subject to ‘universal international condemnation’ and in ‘clear breach of international law,’145

it is fully appropriate to refuse to recognize Resolution 369; there is no concern about

unilateralism or parochialism at play. Put differently, for Lords Steyn and Hope, in the

particular circumstances of Kuwait Airways, there is little concern about the abuse of a legal

principle, and thus the use of public policy conforms to the important rule of law values

underlying Article 41(2).

D. The Connection between Common Law Constitutionalist Values and Peremptory Norms

There is one further connection between the Kuwait Airways test and the common law

conception of the rule of law: arguably, as some scholars have suggested,146 the content of

peremptory norms themselves tracks the common law constitutionalist conception of the rule

of law. I will not provide a full defence of this position in this sub-part; to fully defend this

claim would require me to identify all existing jus cogens norms (a controversial exercise in

141 Ibid at para 114 (‘local values ought not lightly to be elevated into public policy on the transnational level’). 142 Ibid at para 115. 143 Ibid. 144 Ibid at para 166. 145 Ibid at para 169. 146 See Mark Ellis, ‘Toward a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice’ (2010) 72 U Pitt L Rev 191.

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its own right)147 and then to argue that all such norms also constitute common law

constitutionalist principles. This would be a significant task, outside the scope of this

dissertation. However, I will argue that there is a connection between at least some peremptory

norms and the standards scholars have argued constitute the fundamental principles of a

common law constitutionalist account of the rule of law.

The connection between a common law conception of the rule of law and peremptory

norms begins at the structural level. The hallmark of the common law constitutionalist

conception of the rule of law is the premise that there are certain moral norms that, if violated

by a particular positive law, mean that such a law cannot be regarded as a law at all, and thus

either the law should be interpreted in conformity with those norms or be denied effect.148 Jus

cogens norms perform a very similar structural role, on many scholars’ accounts: they

articulate moral norms that render a positive law that violates them inutile.149 For example,

under Article 53 of the Vienna Convention on the Law of Treaties, any treaty that violates a

peremptory norm is void.150 Both the common law constitutionalist account and the concept

of jus cogens attempt to articulate the fundamental norms that positive law cannot violate if it

is to be enforced as law.

147 There is substantial academic debate about which principles of international law are jus cogens. See e.g. Lauri Hannikainen, Peremptory norms (jus cogens) in international law: Historical development, criteria, present status (Helsinki: Finnish Lawyers’ Publishing Co, 1988) [Hannikaninen]; Orakhelashvili, supra note 94, ch 2; Christos L Rozakis, The Concept of Jus Cogens in the Law of Treaties (Amsterdam: North-Holland Publishing Co, 1976); Christian Tomuschat & Jean-Marc Thouvenin, eds, The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omens (Leiden: Nijhoof, 2006). 148 TRS Allan, ‘In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law’ (2009) 22 Can JL & Jur 187; Allan, Sovereignty of Law, supra note 68; see also debates in Christopher Forsyth, ed, Judicial Review and the Constitution (Oxford: Hart Publishing, 2000). 149 See e.g. Orakhelashvili, supra note 94 (although his positivist approach has been criticized as incoherent; see Byers’ review). 150 VCLT, supra note 87, art 53.

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There is also some overlap in the particular norms that are prohibited as a matter of jus

cogens and that have been identified by common law constitutionalist theorists as essential

aspects of the rule of law. One of the earliest jus cogens prohibitions was of slavery, which has

long been identified in the common law tradition as incompatible with the rule of law,151 as

we saw in Chapter 3 in the context of Somerset’s case.152 Likewise, jus cogens norms prohibit

egregious racial discrimination, which has also been a key example of a rule of law violation

for common law constitutionalists,153 as discussed in Chapter 4. Genocide, torture, and

unlawful detention are other potential places of substantive overlap between the two concepts.

In Kuwait Airways, the jus cogens norm that Iraq violated was the international

prohibition on the aggressive use of force against the territorial integrity of another state. While

clearly prohibited by jus cogens norms, the substance of the international prohibition on the

use of force does not seem, prima facie, to connected to a derived from a common law

constitutionalist conception of the rule of law. However, while it may not be immediately

evident, the connection is nonetheless clear: the prohibition on the use of force is generated by

an extraordinarily basic rule of law value – the principle that disputes should be resolved by

law rather than force. The prohibition on force in international law represents an attempt to

eliminate the settlement of dispute through interstate force and to instead subject interstate

relations entirely to legal disciplines.154 Indeed, the international prohibition on the use of force

has been widely understood to be an attempt, successful or not, to subject international politics

151 See e.g. Allan, Sovereignty of Law, supra note 68 at 96. 152 See supra Chapter 1. 153 Allan, Sovereignty of Law, supra note 68. Note that McLachlan also makes this connection between jus cogens norms, slavery, and the use of public policy in Oppenheimer. See McLachlan, Foreign Relations Law, supra note 56 at 537. 154 As Fuller writes, ‘the object of the rule of law is to substitute for violence peaceful ways of settling disputes.’ Fuller, supra note 104 at 111.

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to law.155 As such, the prohibition on the use of force is perhaps an ur-rule of law norm at the

international level – it provides a background norm that requires states to channel their disputes

through law.156 The jus cogens prohibition on the use of force thus illustrates – rather than

disproves – the connection between the rule of law and jus cogens norms.

Part IV: Does this Reading Cohere with the Rest of Kuwait Airways and the Public Policy Jurisprudence?

This reading of the public policy test from Kuwait Airways suggests that the case can

be understood to cohere with my common law constitutionalist account of the public policy

exception. But does this reading cohere with other the way the Lords dealt with the surrounding

legal issues addressed in Kuwait Airways? And does this articulation of the court’s approach

fit with other public policy cases concerning violations of international law?

A. Are the Act of State and Non-justiciability Doctrines in Kuwait Airways in Tension with a Rule of Law Reading?

As I discussed above in Part I, the application of the public policy exception in the

context of violations of public international law is limited (at least to some extent) by the non-

justiciability and act of state doctrines. In Kuwait Airways, the Lords concluded that neither

doctrine prohibited them from refusing to recognize Iraqi Resolution 369 as a matter of public

policy. They held that the non-justiciability doctrine did not apply because the international

155 See e.g. Oscar Schachter, ‘In Defense of International Rules on the Use of Force’ (1986) 53:1 U Chicago L Rev 113 at 113: ‘The Nuremberg principles that emerged at the end of World War II were hailed as a momentous advance toward an effective rule of law in international society’; Hans Kochler, ‘The Use of Force in the New International Order: On the Problematic Nature of the Concept of Humanitarian Intervention’ (1999): ‘Having outlawed armed intervention and interference in other states’ affairs was considered by the community of nations as a major achievement in the development of modern international law. Having replaced a power-centered system of norms regulating the behavior of sovereign states by a set of principles that are above the sovereign power of the state, i.e. that are binding upon all states and from which no derogation is possible, was perceived by legal scholars as genuine progress in the direction of a norm-centered international order, the very basis of the universal rule of law.’ See also Hans Kelsen, Peace Through Law (1944). 156 See Oona A Hathaway & Scott J Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017); Phillip C Jessup, ‘A half-century of efforts to substitute law for war’ (1960) 9 Rec des Cours 3.

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law principles on point were clear, and that the act of state doctrine did not apply because the

Iraqi law in question was ‘fundamentally unacceptable.’ But these doctrines remain a part of

the analysis when deciding whether to refuse recognition of a foreign law on the basis of public

policy,157 and a number of scholars have argued that these doctrines are incompatible with the

rule of law.158

Most notably, Thomas Franck has argued at length that so-called ‘political’ doctrines,

in which courts will decline to decide certain questions regarding foreign affairs that are

supposedly beyond the realm of judicial determination, cannot be reconciled with the rule of

law.159 The notion that there are questions beyond judicial competence ‘ignores the evident

truth that in our system a law that is not enforceable by adjudicatory process is no law at all.

A foreign policy exempt from judicial review is tantamount to governance by men and women

emancipated from the bonds of law.’160 According to Franck, there is no special reason why,

in the context of foreign affairs, courts should decline to address certain issues – and the

conclusion that they should do so is in violation of the rule of law.161

157 Although not in Canada, which has declined to adopt the act of state doctrine: Laane and Baltser v The Estonian State Cargo & Passenger Steamship Line, [1949] SCR 530. For a comparative approach to which countries have adopted such doctrines, see Thomas Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (Princeton, NJ: Princeton University Press, 1992) ch 7 [Franck]. 158 James N Hyde, ‘The Act of State Doctrine and the Rule of Law’ (1959) 53:3 AJIL 635; but see William Harvey Reeves, ‘Act of State Doctrine and the Rule of Law – A Reply’ (1960) 54:1 AJIL 141; T Endicott, ‘The Reason of Law’ (2003) 48 Am J Juris 83 at 97 (‘Justiciability is one of the moral principles that determine the ideal content of the rule of law’); BV Harris, ‘Government “Third Source” Action and Common Law Constitutionalism’ (2010) 126 LQR 373; Dominic McGoldrick, ‘The Boundaries of Justiciability’ (2010) 59:4 ICLQ 981 (arguing that the principle of justiciability ‘delineates the scope of judicial review and ultimately the rule of law’); A Perreau-Saussine, ‘British Acts of State in English Courts’ (2007) 78 Brit YB Int’l L 176 at 252-254. 159 Franck focuses his analysis on the US context, but the theoretical argument can be generalized. 160 Franck, supra note 157 at 8; Tom Bingham, The Rule of Law (London: Penguin Books, 2010) at 110-129. 161 In particular, Franck explicitly rejects the idea that a lack of manageable judicial standards is sufficient: Franck, ibid, at 49-50, 97-106.

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Matthew Nicholson agrees that the act of state and non-justiciability doctrines are

incompatible with the rule of law, but offers a different reason why.162 As he notes, the act of

state doctrine turns in part on the idea that when a government has recognized a foreign state

as sovereign, its courts are bound to recognize the acts of that state on its own territory as a

corollary of its sovereignty.163 Likewise, the non-justiciability doctrine is invoked, at least in

part, on the basis that the court should not risk embarrassing the executive in its conduct of

foreign affairs.164 These principles, Nicholson argues, mean that courts are unable to act

independently of the wishes of government, and are constrained by the executive’s recognition

of foreign states and a desire to act in accordance with the executive’s foreign policy.165 A

fundamental hallmark of the rule of law is the independence of judicial decision-making, and

since these doctrines constrain the choices courts can make, they are incompatible with the

rule of law.166

These arguments have a prima facie appeal; it seems intuitive that judicial abstention

and a requirement to follow the executive’s policy judgments may undermine the rule of law.

162 Nicholson, supra note 53. 163 Kuwait Airways, House of Lords, supra note 1 at para 24. 164 Ibid at paras 138, 147. 165 Nicholson, supra note 53 at 747: ‘cases involving foreign State acts have the potential to trap judges between the wishes of government and the rule of law’s requirement for independent judicial reasoning. Vague yet determinative act of State and nonjusticiability doctrines provide a means of escape from this trap, enabling judges to defer to the government’s wishes whilst concealing the consequences of doing so for the independence of judicial reasoning. When they deem it politically necessary judges employ the act of State and non-justiciability doctrine(s) to conceal the fact that they have decided whether to hear a case involving foreign State acts for political reasons connected with the government’s wishes rather than as a result of independent judicial reasoning’ (citations excluded). 166 Ibid at 777-778: ‘The idea that judges are deciding cases involving foreign State acts and foreign rather than as the result of independent judicial reasoning is a “logical scandal or double bind”, “unthinkable and…conceptually paradoxical” from a rule of law perspective that insists on judicial reasoning free from political influence policy considerations on the basis of deference to the government’s wishes…’

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However, it is possible to conceptualize the non-justiciability and act of state doctrines as

compatible with the rule of law.167

First, there is no reason to assume that because a municipal court is prohibited from

deciding a particular issue that this in and of itself undermines the rule of law. As Lauterpacht

argues in the context of the act of state and non-justiciability doctrines,

Can the limitation of the competence of the courts in these matters be construed as a limitation of the rule of law within the State? It is submitted that it cannot. Here as elsewhere care must be taken not to confuse the limitation upon the unrestricted freedom of judicial decision with a limitation of the rule of law. In the cases here discussed the limitations upon the freedom of judicial decision, far from amounting to a suspension of the rule of law, are the expression of a differentiation of functions, which for reasons of obvious expediency is unavoidable in the modern State.168

The fact that a court is not permitted to rule on all types of questions or that there is an

expectation that the acts of recognized foreign states will be given effect does not mean that

the rule of law itself is undermined. It is entirely compatible with the rule of law for some

questions to be decided by the political branches and others to be determined by the judiciary;

the notion that some issues are not subject to judicial determination does not, in and of itself,

undermine the rule of law.169

In addition, the underlying rationales for the non-justiciability and act of state doctrines

do not seem to ultimately contradict any rule of law principle. In Kuwait Airways, the Lords

clarified that the non-justiciability doctrine from Buttes Gas turns on whether or not the issue

involves a clear international legal standard by which a dispute can be judged.170 If a particular

167 By this, I do not mean that they are themselves motivated by the rule of law, but rather that they do not undermine it. 168 H Lauterpacht, The Function of Law in the International Community (Oxford: Oxford University Press, 1933) at 389. 169 See Louis Henkin, ‘Is there a “Political Question” Doctrine?’ (1976) 85:5 Yale LJ 597. 170 See discussion in Korea National Insurance Corporation v Allianz Global Corporate [2008] EWHC 2829.

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issue is truly not governed by established legal principle and is currently a matter of political

dispute among states, it seems entirely compatible with the rule of law for a municipal court

to decline to decide the matter – because there is no law on point by which the court could

decide the case.171 This is particularly true in the context of international law, where state

practice (in the context of custom) and state consent (in the context of treaties) is the author of

international law rules; municipal courts are not the primary actors in charge of deciding the

content of international law – states are.172 So it would be problematic from a rule of law

perspective for courts to interpose themselves in the international law making process by

holding that an issue that had not yet been resolved as a matter of international law could be

determined by a municipal court.173

Similarly, the act of state doctrine as articulated in Kuwait Airways does not seem to

be in tension with the preservation of the rule of law. As Lord Nicholls frames the matter,

while territorial acts of foreign states recognized by the forum court’s government will

typically be recognized, this cannot strip a common law court of its residual power to refuse

to apply foreign law that is ‘fundamentally unacceptable’ – i.e. that violates public policy.

While the default rule is to recognize a foreign act of state as a corollary of the legal principle

of sovereignty, the forum court retains its residual discretion to determine whether the foreign

law violates the forum’s conception of justice or morality – and thus to uphold the rule of law.

171 See R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs, [2009] EWHC 1910 (Admin) [Al-Haq]; Shergill v Khaira, [2014] 3 WLR 1; Rahmatullah v The Ministry of Defence, [2014] EWHC 3846 (QB). 172 See e.g. United Nations, Statute of the International Court of Justice, 18 April 1946, art 38, listing domestic judicial decisions and scholarship as ‘subsidiary means’ of determining international law, in contrast to the primary means of determining international law through treaty and custom. 173 This interpretation is reinforced when we consider that Buttes Gas was decided by Lord Wilberforce, a noted expert in the field of international law and Chairman of the International Law Association, who would have been fully aware of the method by which international law is made and the limited role of courts in this process.

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Finally, when a foreign act of state is refused recognition on the basis that the foreign

state violated peremptory norms, this is not in tension with the recognition of the foreign state

as sovereign. The contemporary conception of sovereignty, as scholars have argued, includes

complying with the peremptory norms of international law.174 There is no conceptual problem

in refusing to recognize sovereign acts that violate peremptory norms, because these actions

conflict with the obligations of sovereignty itself.175 These principles, while somewhat

complex, are entirely legal in nature.176

B. The Proximity of the Dispute to the Forum and the Use of Public Policy

A second possible concern with my rule of law reading of Kuwait Airways arises from

Lord Scott’s dissent. In his speech, Lord Scott agrees with his colleagues that Resolution 369

is fundamentally unacceptable.177 However, he argues that it is inappropriate to apply the

public policy exception to refuse to recognize Resolution 369 in a case with so few connections

to England. If Resolution 369 were to be disregarded through English public policy, Kuwait

Airways would be granted a legal right of action in tort that it would not have under the law of

the place of the wrong – the law of Iraq, which includes Resolution 369.178 English law, which

174 Evan Criddle and Evan Fox-Decent argue that jus cogens norms are derived from the demands of sovereignty: Evan J Criddle & Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale J Int’l L 331 [Criddle & Fox Decent]. See also Belhaj v Straw [2014] EWCA Civ 1394 at para 78 [Belhaj, Court of Appeal] (acts ‘contrary to a jus cogens prohibition … are not sovereign acts’). This is analogous to a common law constitutionalist argument made about limits on parliamentary sovereignty in the domestic context. Allan, Sovereignty of Law, supra note 68 at 35. 175 As Federal Court of Australia interprets it, ‘the state in question has acted in breach of international law and thereby taken itself outside the [act of state] doctrine.’ Australian Competition and Consumer Commission v PT Garuda Indonestia (No 9), [2013] FCA 323 at para 38. 176 However, even if it can be shown that the non-justiciability and act of state doctrines are incompatible with the rule of law, this does not fundamentally challenge my argument. My claim is that the public policy exception itself can be understood as a means of protecting the rule of law, not that every common law doctrine about foreign law is so motivated. 177 Kuwait Airways, House of Lords, supra note 1 at paras 172, 192. 178 ‘Every tortious cause of action must derive its existence, its birth, from some system of law…. From what system of law does [Kuwait Airways’] action for conversion derive its birth? … It can only be the law of Iraq, which at the relevant time included Resolution 369.’ Ibid at paras 183, 193.

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had no connection to the dispute, would be furnishing a legal right which simply did not exist

under Iraqi law.

For Lord Scott, then, it is inappropriate to use public policy to effectively ‘create’ a

right of action that was not available under the law of the place of the wrong if there are no

connections between the forum and the dispute. Lord Scott thus argues in favour of imposing

a proximity principle on the use of public policy.179 Under such a principle, whether a court is

justified in invoking public policy to refuse to recognize some foreign law will depend in part

on whether the dispute is closely connected to the forum state.180 Similarly, in Lord Hope’s

speech, he argues that without a closer connection to England, it would ordinarily be

inappropriately parochial to apply the public policy exception to a situation like Kuwait

Airways; it is only because the invocation of the public policy exception at issue in the case is

rooted in international values that he concludes it is appropriate to apply the exception.181 This

idea appears to make the use of public policy proximity-relative – whether the exception can

be invoked depends on the number of contacts between the forum and the dispute.

This position has been developed in the literature by scholars such as Alex Mills, who

argues that one of the variables that predicts whether courts will apply the public policy

exception (and whether it is legitimate for them to do so) is their proximity to the dispute and

179 The idea of a proximity principle goes by various names. It seems to be referred to as a ‘domestic foothold’ in Al-Haq, supra note 171; in German private international law it is known binnenbeziehung. It is cast by Kahn-Freund in the following terms: ‘The strength of a public policy argument must in each case be proportional to the intensity of the link which connects the facts of the case with this country.’ Otto Kahn-Freund, ‘Reflections on Public Policy in the English Conflict of Laws’ (1954) 39 Transactions of the Grotius Society 39 at 58. 180 ‘The “affront to English public policy” said to be constituted by the refusal of the foreign law to recognize the existence of the tortious cause of action cannot, in my opinion, be a sufficient condition for the creation by English law of a cause of action out of fact with no significant relationship to England.’ Kuwait Airways, House of Lords, supra note 1 at para 196; see also ibid at para 198. 181 Ibid at paras 166-167.

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whether they have an ‘interest’ in regulating the dispute (loosely in Currie’s sense).182 He

writes:

There must be some sort of connection such that the application of the local policy is appropriate, because the forum state is sufficiently interested in the dispute that it should have (at least partial) regulatory authority over it. Like any other application of local law, the use of public policy should depend on an examination of the connecting factors operating between the dispute and the forum state. The weaker this interest is, the more that public policy should be restricted. The stronger this interest is, the greater the degree of proximity, and the greater the justification for the application of public policy.183

For Mills, whether to invoke public policy or not is at least partly a question of whether a state

should have regulatory authority over the particular dispute.184

In my view, the proximity principle is in tension with a common law constitutionalist

account of public policy. If a court has taken jurisdiction over a dispute,185 an applicable but

fundamentally abhorrent foreign law should be denied application regardless of how factually

connected the dispute is to the forum court. The mere fact that a ‘fundamentally unacceptable’

law applies to a dispute that is factually distant from the forum does not give the forum court

license to apply a law that fails to comply with the fundamental principles of legality. To apply

such a law would violate the court’s responsibility to uphold the rule of law in the

administration of justice, as Lord Nicholls frames it. How, then, can the strand of the decision

in Kuwait Airways which endorses this proximity principle be understood in a way that is

compatible with my rule of law approach?

182 Alex Mills, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4:2 J P Int’l L 201 at 210-212 [Mills, Dimensions]. Currie’s theory of ‘interest analysis’ is introduced in various essays included in Brainerd Currie, Selected Essays on the Conflict of Laws (Durham, NC: Duke University Press, 1963). 183 Mills, Dimensions, ibid at 211-212 (citations excluded). 184 Mills explains the outcome in Kuwait Airways on the basis of another of the variables he identified: the strength of the public policy value at issue. Ibid at 222-224. 185 It is worth noting that to reach the choice of law stage (where public policy can be applied), the dispute will need to have been sufficiently connected to the forum to justify hearing the dispute in the forum at the jurisdiction stage. Any objections to the degree of connection between the forum and the dispute are, in my view, properly addressed at the jurisdiction stage of the analysis.

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One response is to stress that this principle simply did not carry the day in Kuwait

Airways. Lords Nicholls, Steyn, and Hoffman did not invoke it in their reasons, and thus it

appears to have had no influence on the outcome in the decision. But much more

fundamentally, this entire dissertation can be seen as a response to the theory that the use of

the public policy exception is and should be determined by the degree of factual connections

that state has to a dispute. By providing an alternative account of when the public policy

exception is invoked in practice, I hope to have offered a more plausible theory of the

exception’s use than the vague and unspecified notion that the exception’s application should

rely on whether a state has a regulatory ‘interest’ in the dispute.

C. Fit with Prior Cases

Another important test of whether my interpretation of Kuwait Airways is correct is to

consider how well it fits with prior cases. If my reading of the case is a radical departure from

prior public policy cases on public international law breaches, this would call it into question,

particularly if such a departure was not announced by the Lords. The leading public policy

case on public international law breaches is Oppenheimer. Thus we must consider how my

interpretation of Kuwait Airways fits with the holding of Oppenheimer, particularly given that

the Lords in Kuwait Airways considered their holding to be an ‘extension’ of the holding in

Oppenheimer.186

In the most well-known passage from Oppenheimer, Lord Cross held that the Nazi law

under consideration ‘constitutes so grave an infringement of human rights that the Courts of

this country ought to refuse to recognise it as a law at all.’187 This statement has been taken to

186 As Lord Steyn wrote, ‘In my view the Court of Appeal was right to extend the public policy exception beyond human rights violations to flagrant breaches of public international law.’ Kuwait Airways, House of Lords, supra note 1 at para 114. 187 Oppenheimer v Cattermole, [1976] AC 249.

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mean that violations of international human rights law can justify invoking public policy.188

Yet depending on the meaning of ‘human rights,’ this interpretation of Oppenheimer may be

in tension with my reading of Kuwait Airways, given that not all internationally protected

human rights are classified as peremptory norms.189 As such, Oppenheimer may allow a

broader range of human rights breaches to invoke public policy than my reading of Kuwait

Airways does.

There are two ways to address this apparent disconnect. First, it is possible that

Oppenheimer and Kuwait Airways are simply two different and distinct heads of the public

policy exception. Oppenheimer allows English courts to refuse to recognize breaches of

international human rights law broadly construed, including any right protected by an

international human rights instrument; whereas Kuwait Airways allows courts to refuse to

recognize serious breaches of peremptory norms. There will be some overlap between these

two categories but they are not coextensive.

However, the better approach to this disconnect, in my view, is to interpret

Oppenheimer in light of my reading of Kuwait Airways. We should, I argue, conclude that

only breaches of human rights norms that are also recognized as peremptory norms will allow

common law courts to invoke public policy.190 A wide range of human rights violations would

still trigger the use of public policy;191 however, it would not be the case that all rights codified

188 This was the position taken by Iraqi Airways in Kuwait Airways. 189 See Criddle & Fox Decent, supra note 174. 190 This is the approach Campbell McLachlan takes. See McLachlan, Foreign Relations Law, supra note 56 at 537. 191 The Restatement on Foreign Relations defines jus cogens norms to include prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; and systematic racial discrimination. Thus a wide range of human rights protections are classified as peremptory norms.

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in an international human rights instrument would justify invoking public policy. There are

several reasons to support this interpretation.

First, Oppenheimer itself does not support the broader view that a violation of any

international human rights instrument can be used to invoke public policy. Rather, the case

simply states that a law that stripped property and citizenship on a racially discriminatory basis

was ‘so grave an infringement of human rights that the Courts of this country ought to refuse

to recognise it as a law at all.’ Oppenheimer does not state that all human rights violations will

trigger public policy; instead, it was the particularly grave nature of the breach of the jus cogens

prohibition on systematic racial discrimination that justified the use of public policy in the

case.

The context in which Oppenheimer was decided also supports this more limited

reading. Oppenheimer came before English courts in the years following Barcelona Traction,

an ICJ case that was crucial to establishing the existence and content of peremptory norms.

The case emphasized the fundamental nature of certain ‘basic’ human rights norms, ‘including

protection from slavery and racial discrimination,’192 a revolutionary holding in public

international law which likely influenced the outcome in Oppenheimer. It is therefore more

likely that Oppenheimer was motivated by the universal and peremptory nature of the norm

against racial discrimination, rather than the mere fact that it was part of international human

rights law.

The rule of law reasons discussed above also inure in favour of a narrower reading of

Oppenheimer. In the contemporary international system, international human rights

instruments are manifold, protecting an enormous number of rights. This includes many rights

192 Barcelona Traction, supra note 122 at para 34.

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about which states may reasonably disagree that they are fundamental, as Criddle and Fox-

Decent argue.193 If common law courts were to invoke public policy in response to every

perceived breach of a human rights norm, this would raise the rule of law issue discussed

above: non-recognition on the basis of breaches of international law could be abused for

political or unilateral purposes, instead of being focused on the most fundamental violations

of international law – serious breaches of peremptory norms.

D. Fit with Subsequent Cases A final test of my analysis of Kuwait Airways is whether my interpretation of its

holding has been followed in subsequent cases. In my view, a number of subsequent cases

offer an affirmation of my approach.

In several instances, courts have refused to allow the use of the public policy exception

when the alleged breach of public international law was not a jus cogens norm.194 For example,

in Empresa Nacional de Telecomunicaciones SA v Deustsche Bank AG,195 a 2009 case from

the Commercial Court Division of the Queen’s Bench, one of the parties argued that

nationalization without compensation of a Dutch Company’s Shares by the Bolivian

government was contrary to public policy, and thus could not be recognized in England. The

party argued that the expropriation without compensation was contrary to public policy

because it violated a principle of international law against such appropriations, enshrined in

(for example) the European Convention on Human Rights’ protection against deprivation of

possessions.196 The court rejected this claim on the basis that the international prohibition on

193 Criddle & Fox-Decent, supra note 189. 194 McLachlan, Foreign Relations Law, supra note 56 at 537. 195 [2010] 1 All ER (Comm) 649 (Queen’s Bench Division (Commercial Court)) [Empresa Nacional]. 196 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (1950) ETS 5, Protocol 1, art 1.

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compulsory expropriation was not clearly established or widespread,197 and thus the test in

Kuwait Airways for the invocation of public policy could not be met. This holding, which has

been affirmed in several other subsequent cases,198 affirms my theory that only serious

breaches of jus cogens norms will trigger the use of public policy. Expropriation without

compensation – which is not prohibited by jus cogens – was not the type of international law

violation that could justify invoking public policy.199

Similarly, in Al Jedda v Secretary of State for Defence, heard in 2010 by the UK Court

of Appeal, the plaintiff sought to bring a wrongful imprisonment claim in British courts (but

pursuant to Iraqi law) against British armed forces for their conduct in Iraq.200 In contesting

this claim in a preliminary hearing, the British government argued that Iraqi law should not

apply to resolve the dispute because the law of Iraq violated public policy. The argument in

support of this claim went as follows. Security Council Resolution 1546, which regulated the

transition to democracy in Iraq, required British forces to ‘detain persons for imperative

reasons of security.’201 The British government argued that public policy should be used to

197 Empresa Nacional, supra note 195: ‘Where a foreign state has compulsorily acquired property there is scope for a range of views as to which rights of the expropriated party are such that they ought to be recognized in a domestic court and I am not satisfied that there is a rule of international law, whether in the nature of a human right or otherwise, that in no circumstances can property be compulsorily acquired by a state without compensation at least where there is no element of racial or religious discrimination involved.’ 198 See Banco Nacional de Comercio Exterior SNC v Empresa de Telecomunicaiones de Cuba, [2007] EWHC 2322 (Comm), where in the context of the recognition and enforcement of a foreign judgment a party relied on an alleged infringement of the right to peaceful enjoyment of possessions under Protocol 1, Article 1 of the European Convention on Human Rights to support a public policy claim; this argument was rejected by the court. Similarly, in JSC BTA Bank v Ablyazov & Ors, [2011] EWHC 202 (Comm), a party argued that the Kazakhstan government’s nationalization of a bank was an expropriation without compensation, a flagrant violation of international law that therefore could not be recognized in English court as a matter of public policy following Kuwait Airways. The court did not reach the public policy issue because it found the case to be non-justiciable. Finally, in the ongoing Yukos Capital saga, at the Court of Appeal, the court found that expropriation was not a sufficiently clear international norm to support a public policy claim: Yukos Capital v OJSC Rosneft Oil Co, [2012] EWCA Civ 855 at para 72. 199 It also supports the reading of Oppenheimer I offer above: the mere fact that the right against deprivation of possessions had been enshrined in an international human rights instrument did not establish that its breach was the basis for non-recognition. 200 [2010] EWCA Civ 758 [Al Jedda]. The case subsequently went to European Court of Human Rights. 201 Al Jedda, ibid at para 76.

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refuse to apply Iraqi constitutional law prohibiting wrongful imprisonment and requiring due

process. Applying this law would make the British forces liable in tort simply for complying

with their international obligations (including an explicit order of the Security Council).

Following Kuwait Airways, the argument went, this violation of public international law

should be found to violate public policy, and thus Iraqi law regulating the lawfulness of

detention should not be recognized for the purposes of the tort suit for wrongful detention.

The Court of Appeal rejected this argument. The court recognized that its decision may

mean that British forces will be subject to liability under Iraqi law for carrying out their

international obligations. But this does not mean that the Iraqi law was in violation of public

policy, because ‘[t]here is nothing inherently offensive or objectionable about the Iraqi law on

which Mr Al Jedda relies.’202 Constitutional protections against wrongful detention cannot be

said to violate any fundamental norm. Iraqi domestic law may have been inconsistent with

international legal obligations; specifically, Iraqi domestic law may have created liability for

acts that were ordered by the Security Council. However, the mere fact that Iraqi law was

inconsistent with international law would not violate public policy under Kuwait Airways.

Rather, the court held, a foreign law’s breach of international law must be inherently offensive

or objectionable to justify invoking public policy. This holding fits neatly with my theory that

only serious violations of peremptory norms will trigger the use of public policy. Thus, cases

that have followed Kuwait Airways seem to affirm my rule of law reading of the case. Courts

have refused to apply public policy when the international law norm on point is not sufficiently

important or widespread.

202 Ibid at para 86.

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Finally, the case of Belhaj v Straw demonstrates that courts have recognized that using

public policy is justified where the violation of international law at issue is a violation of a

peremptory norm. Belhaj addressed the public policy exception to the act of state doctrine.203

In the case, decided by the UK Court of Appeal in 2014 and by the Supreme Court in 2017,

the claimants sued the British government for its role in the couple’s rendition to Libya, and

subsequent detention and interrogation. In a preliminary hearing, the UK government argued

inter alia that the claim was barred by the act of state doctrine. The Court of Appeal and the

Supreme Court rejected this argument on the basis of the public policy exception, as

established in Kuwait Airways and Oppenheimer, because the claimants alleged ‘particularly

grave violations’ of international human rights, as instantiated in important instruments of

public international law.204 When reaching this conclusion, the Court of Appeal and the

Supreme Court emphasized certain important aspects of the Kuwait Airways holding. Both

courts stressed that the jus cogens nature of an international law principle that was allegedly

breached – the prohibition on torture – was relevant to the public policy inquiry.205 In addition,

both courts suggested that the gravity of the breach in question was also relevant to the public

policy inquiry.206 These two aspects of the courts’ judgments affirm my interpretation of the

Kuwait Airways holding.207

203 Belhaj, Court of Appeal, supra note 174; [2017] UKSC 3 [Belhaj, Supreme Court]. 204 Belhaj, Court of Appeal, ibid at para 116. 205 Ibid: ‘[I]t is appropriate to take account of the strength of this condemnation [the jus cogens prohibition on torture] when considering the application of a rule of public policy.’ Belhaj, Supreme Court, supra note 203 at para 255. But see ibid at 257, holding that all peremptory norms may not constitute violations of public policy; the question remains whether a fundamental principle of justice has been violated. 206 Belhaj, Court of Appeal, supra note 203 at para 116; Belhaj, Supreme Court, supra note 203 at para 255. 207 Belhaj relies on an Australian case that interpreted Kuwait Airways in a very similar way: Habib v Commonwealth of Australia, [2010] FCAFC 12.

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Conclusion

This Chapter’s analysis has several important implications. First, this chapter clarifies

the holding in Kuwait Airways by helping to establish that we should interpret the case to stand

for the rule that the public policy exception will be used to reject foreign law that violates

public international law when the violation is of a peremptory norm and represents a serious,

gross, or flagrant violation.208

Second, and more importantly for my purposes, my analysis establishes that Kuwait

Airways can be read to be motivated by common law constitutionalist rule of law values. Thus,

despite initially appearing to be a challenge to my rule of law account of the public policy

exception, Kuwait Airways fits with the other uses of the exception that I have explored in this

dissertation.

My analysis in this chapter may have other important implications that are ripe for

examination in future work. One such implication involves the connection that I have

highlighted between the obligation of non-recognition in the law of state responsibility and the

public policy exception in private international law. This connection helps to flesh out the

meaning of the non-recognition obligation in Article 41(2), which scholars have frequently

argued is devoid of content.209 Thus, this previously unrecognized connection may have

important implications for the development of the law of state responsibility.

208 As scholars such as Campbell McLachlan have also argued. McLachlan, Foreign Relations Law, supra note 56 at 536. 209 Many scholars have been critical of the non-recognition obligation in Article 41(2), arguing that it amounts to a duty without content. See Stefan Talmon, ‘The Duty not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’ in Chrstian Tomuschat & Jean-Marc Thouvenin, eds, The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omens (Leiden: Nijhoof, 2006) 99 at 104; HM Blix, ‘Collective Recognition and Non-Recognition’ (1970) 130:2 Hague Recueil 587 at 662-665 (discussing doubts about the inclusion of a non-recognition obligation); Chrstian Tomuschat, ‘International Crimes by States: An Endangered Species?’, in Karel Wellens, ed, International Law: Theory and Practice (The Hague: Kluwer, 1998) 253 at 258-259; Martin Dawidowicz, ‘The Obligation of Non-Recognition of an Unlawful Situation,’ in James Crawford,

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The argument in this Chapter also reveals a novel and deep connection between public

and private international law: if the public policy exception can be used to give effect to the

duty of non-recognition of serious breaches of peremptory norms, private international law has

a fundamental role to play in one of the most important doctrines of public international law.

My interpretation of the use of the public policy exception in Kuwait Airways may therefore

inform debates about the relationship between public and private international law.210 Through

the public policy exception, private international law coexists with and compliments public

international law, providing an essential means by which the most fundamental norms of

public international law can be vindicated.

Alain Pellet, & Simon Olleson, eds, The Law of International Responsibility (Oxford: Oxford University Press, 2010) 677 at 683. 210 There is a long-standing literature on the nature of the connection between public and private international law. For a discussion of this literature, see e.g. Roxana Banu, From Conflicts of Sovereignty to Relationships: Recovering Nineteenth Century Relational Internationalist Perspectives in Private International Law (Oxford: Oxford University Press, 2018); Mills, Confluence, supra note 55; Koskenniemi, Gentle Civilizer, supra note 131.

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CHAPTER 6

CONCLUSION AND IMPLICATIONS

Introduction

The central problem addressed by this dissertation is how to conceptualize the public

policy exception in choice of law doctrine. In this project, I have offered a novel common law

constitutionalist account of the exception, arguing that the best way to make sense of the role

that public policy plays in choice of law is as a rule of law check on the content of foreign

private law. Through the exception, common law courts ensure that any foreign law they apply

through their choice of law rules does not violate the substantive rule of law values of the

common law tradition. This approach offers guidance on the values that should inform the

exception’s use, and captures the reasons that English and Canadian courts have relied on when

refusing to apply foreign law as a matter of public policy.

In Part I of this concluding chapter, I summarize the common law constitutionalist

account of the public policy exception. In Part II, I consider what this analysis has revealed

about common law constitutionalism, given that public policy offers an important ‘keyhole’

into what judges consider to be their legal order’s fundamental values. In Part III, I discuss

some remaining ‘hard cases’ – where public policy has been used to reject foreign law for

reasons that seem to have little to do with common law constitutionalism – and suggest that

future work may be able to incorporate these cases into my account. In Part IV, I identify some

further directions for future research, including several potential implications of my

understanding of the public policy exception for the field of private international law more

generally.

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Part I: The Common Law Constitutionalist Account of the Public Policy Exception

A distinctive feature of choice of law doctrine is that it requires common law courts to

apply the private law of foreign jurisdictions. This means that common law courts regularly

settle private law disputes by applying law that has been developed by the courts and

legislatures of other political jurisdictions from around the world – and not just by applying

the private law developed by their own courts and legislature. These other jurisdictions will,

of course, often have private law rules that are rooted in very different conceptions of justice

than that of the forum. They even may be rooted in what the common law forum might consider

to be a system of injustice or barbarism.

The standard doctrinal mechanism in choice of law for dealing with the problem of

fundamentally unjust foreign law is the public policy exception, which allows common law

courts to refuse to apply foreign law that violates the forum’s fundamental principles of

morality and justice. But this raises an important issue, as I argued in Chapter 1: to use the

exception, courts must identify the forum’s non-derogable values. In requiring courts to do so,

the public policy exception poses a difficult conceptual challenge for courts. Indeed, the

standard scholarly position is that it is impossible to give a general account of the non-

derogable values that should animate the exception’s use. The exception is thus thought to be

fundamentally indeterminate – the infamous ‘unruly horse’ of choice of law doctrine.

It is this ‘unruly’ nature of public policy that has meant that the exception has also been

understood to pose a threat to the rule of law in private international law. The exception offers

judges an ‘escape hatch’ from the first order choice of law rules through the vague notion of

public policy. In doing so, the exception makes first order choice of law rules less certain,

clear, and predictable. Public policy is therefore often thought to undermine formal or positivist

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rule of law values. On this conception, the rule of law is thought to have an instrumental

function, ensuring that the law promulgated by officials is clear, predictable, certain, and

prospective, so that it can more efficiently direct human action and be complied with by the

law’s subjects.

As I also argued in Chapter 1, however, there is another account of the rule of law that

makes the exception look less threatening and disruptive. This is the common law

constitutionalist account of the rule of law, the leading substantive or non-positivist account in

the common law tradition. Indeed, beyond just making the exception look less disruptive, this

account of the rule of law may be capable of making sense of the public policy exception’s

role in choice of law doctrine, and may offer guidance on and a rationale for the values that

should guide its use.

Under the common law constitutionalist account, the rule of law does not play an

exclusively or even primarily instrumental role; the rule of law should not be understood as a

means by which any rules that happen to be posited by officials are more efficiently enforced.

Instead, the rule of law should be understood as a ‘moral ideal of legality’ – a normative theory

of justice that ensures that the exercise of coercive political authority is justified, legitimate,

and respectful of the autonomy and dignity of persons. Judges must do much more than ensure

that the law complies with the formal virtues of the rule of law (such as predictability, clarity,

consistency, and generality). In addition, judges must also ensure that the substance of the law

(and the reasons for its application) conform with the fundamental rule of law values of the

unwritten ‘common law constitution.’

The common law constitutionalist perspective brings considerable coherence to the

public policy exception. First, it offers an account of why it is that public policy must play a

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role in choice of law: because judges must always have the ability to ensure that the law that

they apply conforms with the fundamental values of legality that inhere in the unwritten

common law constitution. In other words, judges must always ensure that any law that they

apply conforms with the substantive values of the rule of law. The public policy exception can

therefore be understood as a ‘rule of law check’ on the application of foreign law. Second,

common law constitutionalism offers guidance as to the values that should animate the use of

the public policy exception: the common law constitutionalist account suggests that it is the

unwritten values of legality that inhere in the common law constitution that judges must ensure

are not violated by foreign law. The account therefore offers important guidance on how to

overcome the conceptual challenge posed by the public policy exception by identifying the

non-derogable, constitutional values that must be protected through public policy.

Ultimately, I argued in Chapter 1, common law constitutionalists would not see the

public policy exception as a bête noire or an unruly horse, as it is traditionally thought to be.

Rather, they would see the exception as a necessary outgrowth of the judicial obligation to

uphold the rule of law; and they would feel equipped to answer the conceptual challenge raised

by the exception. And perhaps most fundamentally, common law constitutionalists would view

the exception as an extraordinary opportunity – as an unusual legal doctrine which requires

judges to articulate and define the fundamental values of the common law tradition. The

exception presents a unique and fascinating opportunity to study the common law’s self-

understanding.

In addition to making sense of the role of the exception and the values that should guide

its use, the common law constitutionalist account can make sense of the way in which the

exception has been used by courts when analyzing foreign law as a matter of public policy.

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While common law courts do not use the language of the rule of law when deciding public

policy cases, the reasons that they have relied on to refuse to apply foreign law track closely

the reasons that common law constitutionalists would give for refusing to apply a law that

violated the common law constitution’s principles of legality.

I began to make the case that there is a connection between common law

constitutionalist reasoning and the public policy jurisprudence in Chapter 2, in which I

identified the principles of the common law constitutionalist account that would likely apply

in the public policy context. As it has been developed by scholars such as TRS Allan, the core

of the common law constitutionalist theory is the idea that the rule of law requires individuals

to be protected from arbitrary power. At the most basic level, the rule of law is meant to ensure

that individuals are subject not to ‘rule by men,’ through the arbitrary exercise of mere coercive

force, but rather to the ‘rule of law’ – the legitimate exercise of legal authority. On Allan’s

account, the rest of the common law constitutionalist theory is an elaboration of how the law

can act as a bulwark against the arbitrary will of others.

Drawing from the republican tradition in political theory, Allan fleshes out the

implications of this idea by arguing that the law must, at a minimum, prevent individuals from

being subject to arbitrary interference from both public and private actors – what is called

‘domination’ in republican parlance. The rule of law therefore requires the law to secure all

individuals’ ‘freedom as independence.’ Preventing individuals from being subject to arbitrary

interference (and thus preserving their independence) has two dimensions: a liberty dimension

and an equality dimension. The law must protect a domain of liberty that allows individuals to

be free from the interference or domination of others. This includes protecting the basic human

rights and freedoms of persons. And the law must also protect the equality of persons,

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prohibiting discriminatory (and thus arbitrary) restrictions on the liberty of the law’s subjects.

Along both of these dimensions, the law’s content must meet certain minimal, mandatory

substantive requirements in both public and private law, in order to comply with the rule of

law in the common law tradition.

Of the mandatory requirements that Allan identifies, there are several which are

potentially relevant to the distinctive context of the public policy exception (which is typically

concerned with analyzing the substance of foreign private law). According to the liberty

dimension of the common law constitutionalist account, private law must, inter alia: (1) treat

each person as sui juris, or as their own master; (2) impose a consent requirement, ensuring

that individuals cannot be interfered with by others without their consent; and (3) impose a

responsibility requirement for liability. On the equality dimension, when establishing the

private rights of persons, the law cannot discriminate among individuals on the basis of

immutable characteristics such as race, gender, or sexual orientation.

And it is these substantive requirements of the common law constitutionalist account

of the rule of law in private law, I argue, that have animated the public policy inquiry in

practice. When we examine English and Canadian public policy case law, we see strong

evidence that reasons drawn from both the liberty dimension and the equality dimension of the

view have been invoked by courts to refuse to apply foreign private law as a matter of public

policy.

As I discussed in Chapter 3, the liberty dimension of the account helps to explain why

foreign law was refused application in a wide range of public policy cases that had been

previously thought to be unrelated to one another (and in some cases, that have been thought

to be wrongly decided). Instead, we should understand this wide range of cases to have been

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rooted in the same reasoning – common law courts will refuse to apply law that denies the

freedom as independence of persons. These cases include situations where the sui juris

requirement, the consent requirement, or the responsibility requirement was not complied with

by foreign law.

Likewise (as I discussed in Chapter 4), the equality dimension of the common law

constitutionalist account helps us to see that there is a long-standing tradition of refusing to

apply foreign private law that discriminates among persons on the basis of some immutable or

constructively immutable characteristic. Notably, this tradition began well before the advent

of modern human rights law and constitutional equality protections; instead, we should

understand it as motivated by the longstanding, fundamental rule of law values of the common

law tradition.

The common law constitutionalist account of the rule of law thus explains why

common law courts have refused to apply foreign law in a wide range of public policy cases.

And, as I discuss in Chapter 5, this rule of law approach can be extended to explain a leading

public policy case that initially seems to be unconnected to common law constitutionalist

reasoning – the House of Lords’ judgment in Kuwait Airways.

Part II: The Public Policy Exception as Keyhole and Implications for Common Law Constitutionalism and the Rule of Law

As I also argued in Chapter 1, common law constitutionalists would not simply see the

public policy exception as a conceptually coherent part of common law legal reasoning. Rather

they would also see the exception as a remarkable doctrine because it offers an important

keyhole into the way that common law judges understand their legal tradition. Since the

exception requires judges to explicitly identify the fundamental values of their legal order, the

way the exception has been used in practice may be able to shed light on what those much-

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debated values actually are. In turn, the public policy jurisprudence may have important

implications for our assessment of theories like common law constitutionalism that offer an

account of what the fundamental values of the common law legal tradition actually are. The

work done by this dissertation to track judicial reasoning in the public policy context may

therefore have implications for how we understand the common law’s fundamental values, and

for our assessment of the persuasiveness of common law constitutionalism as a theory of the

rule of law.

A. The Common Law’s Fundamental Values in Practice

This dissertation’s analysis of the public policy jurisprudence offers insight into how

common law judges have understood the common law’s fundamental, non-derogable values.

As I summarized above, the values that judges have pointed to appear to track closely the

common law constitutionalist account of the rule of law. Judges in a wide range of cases have

refused to apply foreign law on the grounds that it violates the liberty or the equality

dimensions of the common law constitutionalist account. This suggests that – in this unusual

area of law, which demands that judges explicitly identify their legal order’s ‘fundamental

values’ – judges have indeed treated the principles of the common law constitution as the

fundamental values of the common law tradition in practice.

The claim that it is the particular values of the common law constitution that judges

have taken to be the non-derogable values of the common law tradition when applying the

exception is reinforced when we consider cases in which judges have refused to use the public

policy exception. In several important cases, judges have refused to invoke the exception even

when foreign law violates a principle that we take to be a very basic common law rule, but

which is nevertheless not a value of the common law constitution. Take, for example, the

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common law’s widely accepted requirement that a valid contract requires an exchange of

consideration between the parties. This is clearly an extremely basic requirement of the

common law of contract.1 But the fact that a foreign law does not require consideration to form

a contract has been found to not violate the public policy exception.2 And this outcome is

precisely what a common law constitutionalist account of the exception would predict. While

consideration is a foundational part of the common law’s approach to the law of contracts, it

is not non-derogable in the way that the requirements of the common law constitution are.3

Thus, the requirement of consideration is not properly part of the public policy exception.

Instead, it is a narrower category of foundational legal principles that have been found by

judges to be non-derogable: the particular principles of the common law constitution.

B. The Success of Common Law Constitutionalism as a Theory of the Rule of Law

The fact that the public policy jurisprudence tracks the foundational values of the

common law tradition previously identified by the common law constitutionalists offers

important support for common law constitutionalism as a theory of the rule of law. Common

law constitutionalists seek to offer an account of the rule of law that is not only conceptually

sound, but also tracks the way in which judges actually assess the legality of particular laws in

common law courts. As discussed in Chapter 1, common law constitutionalism is not meant to

be merely a high-level or abstract approach to theorizing about the rule of law, without

practical application, but rather is meant to explain and justify judicial behaviour.4

1 See e.g. John D McCamus, The Law of Contracts, 2d ed (Toronto: Irwin Law, 2012) at 215-218; Peter Benson, ‘The Idea of Consideration’ (2011) 61 UTLJ 241 at 242 (‘No doctrine of the common law of contract has been longer settled or more carefully developed than consideration.’). 2 In re Bonacina, [1912] 2 Ch 394 (CA (Eng)). 3 The court in In re Bonacina explicitly discusses how the consideration requirement may be fundamental to the common law tradition but it is not a ‘moral’ requirement of the law. Ibid at 403-404. 4 This is, of course, in addition to the theory’s objective of offering a reasoned elaboration of law’s internal commitments. For a discussion of this aspect of common law constitutionalism, see supra Chapter 1, Part IV.B.

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For this reason, my project offers important support for common law constitutionalism

as a theory of the rule of law and adjudication. My analysis in Chapters 3, 4, and 5 shows that

the particular rule of law values set out by common law constitutionalists do real work in

judicial decision-making. Common law constitutionalism identifies principles that actually

guide the judicial inquiry in practice. The account is not merely an exercise in abstract

theorizing but also offers an approach to the rule of law that can capture and explain judicial

reasoning.

The fact that judges have actually relied on common law constitutionalist values when

conducting their public policy analysis also helps to respond to a frequent critique of common

law constitutionalism as a theory of adjudication. This standard critique (as discussed in

Chapter 2) is that while common law constitutionalism may offer an attractive picture of the

rule of law at the theoretical level, the account does not identify rule of law values with

sufficient particularity and clarity that it could actually be used by judges to evaluate the law.5

But this project shows that common law constitutionalism can be elaborated into a

particularized, concrete, and effective approach to judicial review which we see reflected in

judicial reasoning.

This analysis may also respond to another frequent critique of common law

constitutionalism: that it amounts to a complete theory of justice or a theory of ‘good law,’ and

not a parsimonious theory of the rule of law that can identify when particular laws are non-

compliant with legality concerns.6 In my analysis of the public policy exception, common law

constitutionalism was able to identify particular mandatory rule of law values with which the

5 See supra Chapter 2, Introduction. 6 See, e.g., Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 228-229; TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford: Oxford University Press, 2013) at 123.

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law needed to comply. It did not devolve into an unworkable, complete theory of justice, but

offered an articulable approach to determining when a law was ‘too unjust’ to be applied by a

common law court. For these reasons, this project offers indirect support for common law

constitutionalism as a theory of the rule of law.

C. Other Implications for Rule of Law Theorizing My analysis in this dissertation may also have implications for theorizing about the rule

of law more generally. As I discussed in Chapter 2, there has been relatively little work done

on how to think about the rule of law in the context of private law.7 This dissertation has sought

to identify rule of law values that can and do apply in the private law context of choice of law

cases. It thus offers a new and systematic approach to thinking about the rule of law in this

distinctive and underexplored area of legal doctrine.

In addition, if I have successfully established that the public policy exception operates

as a rule of law check on the application of foreign law, the way in which courts use the

exception going forward may continue to further our understanding of how the rule of law

operates in the distinctive context of private law. In future public policy cases, common law

courts will continue to confront and grapple with the legality of diverse foreign private laws.

Public policy may therefore serve as an important generator of norms regarding how rule of

law values can be actualized and operationalized in the context of private law.

Part III: Incorporating Other Hard Cases in Future Research

In Chapters 3, 4, and 5 of this dissertation, I discussed a wide range of public policy

cases at length. I demonstrated that many of the best known (and many less well known) cases

in the public policy canon can be explained by my common law constitutionalist approach to

7 See supra Chapter 2, Part I.A.

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the exception. The categories I discussed in those chapters account for a wide swath of the

instances in which choice of law’s public policy exception was invoked in English and

Canadian jurisprudence. Thus, through this analysis, I sought to demonstrate substantial ‘fit’

between the theory of the exception I offer and the use of the exception in practice.

However, there remain some types of cases that I have not yet considered from a

common law constitutionalist perspective. The central category of cases that I have not

addressed is when public policy is used in the ‘illegality’ context: when the private right that

one party wishes to have enforced would have been illegal as a matter of public law under the

law of the place of creation or performance.8 A second (and much less common) set of cases I

have not considered concerns the historic use of public policy in wartime to refuse to recognize

private law relationships between individuals from countries at war with one another, such as

agreements that would constitute ‘trading with the enemy.’9 (Let’s call this the ‘wartime non-

recognition principle.’)

8 There is an extensive scholarly literature on this aspect of the exception, which includes: CF Forsyth, ‘When Can a Foreign Illegality Taint an English Contract?’ (1987) 46 Cambridge LJ 404; RY Jennings, ‘Conflict of Law – Contract Illegal by Foreign Law – Whether Enforceable in England’ (1956) 14 Cambridge LJ 141; FA Mann, ‘Illegality and the Conflict of Laws’ (1958) 21 Mod L Rev 130. Important cases in this line include: Regazzoni v KC Sethia (1944) Ltd, [1958] AC 301; Foster v Driscoll, [1929] 1 KB 470; Ralli Brothers v Compañia Naviera Sota Y Aznar, [1920] 2 KB 287; Lemenda Trading v African Middle East Petroleum, [1988] QB 448; Mahonia v JP Morgan Chase Bank, [2003] EWHC 1927 (Comm); Gillespie Management Corp v Terrace Properties (1989), 39 BCLR (2d) 337 (CA); St John Shipping Corp v Joseph Rank, [1957] 1 QB 267; Royal Boskalis v Mountain, [1998] 2 WLR 538 (CA); Etler v Kertesz, [1960] OR 672 (CA). 9 This use of the exception is now of merely historical interest because neither Canada nor England has declared war since the Second World War, reflecting the fact that the legal category of ‘war’ under international law was substantially transformed by the Kellogg-Briand Pact in 1928, and the UN Charter in 1945. See Oona A Hathaway & Scott J Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the War (New York: Simon & Schuster, 2017).

For scholarship on this use of the exception, see Arnold D McNair, ‘The Effect of War on Contract (Excluding Frustration)’ (1941) 27 Transactions of the Grotius Society 182; James Thuo Gathii, War, Commerce, and International Law (New York: Oxford University Press, 2010). For cases on point, see e.g. Dynamit Aktien-Gesellschaft v Rio Tinto Co, [1918] AC 260 (HL (Eng)) [Dynamit Aktien-Gesellschaft]; Janson v Diefontein Consolidated Mines, [1902] AC 484 (HL (Eng)); Arab Bank Ltd v Barclays Bank, [1953] 2 QB 537; Kuenigl v Donnersmarck, [1955] 1 QB 515.

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A future direction for this project to take will be to assess whether these remaining

types of public policy cases can be accommodated within my common law constitutionalist

account.10 But at first blush, both the illegality cases and the wartime non-recognition cases

seem potentially consistent with my approach. Let’s start with the illegality cases. On this use

of public policy, a common law court will refuse to recognize a foreign acquired private right

claimed by one of the parties if the acquisition of the right was illegal (typically because the

conduct was criminal) at the place of acquisition or performance. This issue typically arises in

the context of contracts, where parties will agree to do something prohibited by criminal law.

The rationale for this invocation of the public policy exception is clear: if something is

prohibited by applicable public law, a party cannot empower herself to rightfully do the

prohibited thing through private action. This is a longstanding principle of the domestic

common law of contracts – as Lord Radcliffe observes in Boissevain v Weil, ‘The act itself

being forbidden, I do not think that it can be a source of civil rights in the courts of this

country.’11 That is, one cannot use the private law to create a legally enforceable private right

to do something which is illegal (including performing illegal acts, holding an illegal status,

or possessing illegally obtained property).

In my view, this reflects an extremely basic rule of law idea. The idea that private

parties cannot empower themselves to break the law through a private legal act seems to be a

10 I do not take it to be a problem for my approach that I have not addressed these cases in this project. As a general matter, and as discussed in Chapter 1, it is not problematic if there are certain cases my theory cannot account for. Any interpretivist approach is unlikely to capture all of the relevant case law, given that law is a human endeavour and that judges are not likely to render judgments that are fully consistent with one another. This is particularly true in the context of my rule of law account of public policy, where I am only now offering the first coherent scholarly account of how the exception’s jurisprudence should be understood (and thus we may expect to see more coherence going forward). There may also be cases that my account would judge to be wrongly decided, as they do not use a rule of law standard when assessing whether foreign law violates the public policy exception. Thus my account does not need to explain every public policy case to have successfully provided an account of the doctrine. 11 [1950] AC 327 at 341 (HL (Eng)).

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core implication of what it means for law to rule at all. That is, parties cannot decide on their

own accord that the generally applicable public law does not apply to them. Thus, as I intend

to explore further in future work, the long-recognized use of the public policy exception in the

illegality context seems consistent with my rule of law conception of the exception.

The historic wartime non-recognition principle may have a similar rule of law flavour.

The non-recognition principle was set out, as a historical matter, in cases like Dynamit Aktien-

Gesellschaft v Rio Tinto Co.12 In that case, a contract between a British and a German firm

made under German law before the outbreak of the First World War was found by the House

of Lords to be unenforceable as a matter of public policy after the war began. To enforce such

a contract, the Lords observed, would require ‘constant commercial intercourse’ with the

enemy and would therefore be illegal and violate public policy. This type of reasoning may fit

nicely within a rule of law account. Under public international law, declarations of war have

always had a significant effect on the legal relations between states. War typically suspends

the normal functioning of municipal law between belligerents.13 Acts by belligerents that

would normally be considered criminal wrongs and private wrongs (such as destroying

property and killing people) instead become regulated through the law of war or international

humanitarian law.

The use of the public policy exception to refuse to recognize private law relationships

between the citizens of states who are at war with one another may be a logical corollary of

this new wartime public law regime that governs the relationship between the belligerent

states. If relationships between the two belligerent states are (at least to some extent) now

12 Dynamit Aktien-Gesellschaft, supra note 9. 13 See Gary D Solis, The Law of Armed Conflict: International Humanitarian Law in War, 2d ed (Cambridge, UK: Cambridge University, 2016) at 46.

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regulated by the law of war, it may be required by that regime to cease recognizing private law

relationships between citizens of the belligerent states that were created by municipal law

before the war broke out. The wartime non-recognition principle thus may be very similar to

the illegality principle – it recognizes that the public law context in which private legal

relationships are created is relevant to the legality of private rights. For this reason, on first

blush, it also seems consistent with my rule of law account of the public policy exception.

Thus while there are categories of cases that this project has not considered directly, it

seems plausible (at least on an initial review of the central categories of such cases) that they

too may be explained along the rule of law lines that I propose. A fruitful direction for future

research would be to consider in more detail how my account could be extended to cover these

cases.14

Part IV: Implications for Private International Law and Other Directions for Future Research

Going forward, I intend to build upon the research conducted for this dissertation in

several other ways. First, I want to explore the implications of this project for our

understanding of private international law doctrine more generally. This project has shown

that the role of the public policy exception in choice of law doctrine is much more coherent

and may be much more substantial than is currently understood. By contrast, under the

standard scholarly picture, the exception is typically thought to be a rarely used hodgepodge

of inconsistent invocations. The work done in this project, however, shows that the exception

14 This analysis will also allow me to confront a question I discussed in Chapter 1, which was whether public policy includes ‘non-normative’ principles (such as ‘policy’ considerations that underlie the conduct of foreign affairs, and thus might guide the wartime non-recognition principle), as some scholars have suggested. See supra Chapter 1, Part I.B.

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is deeply coherent and that it plays a core role in the choice of law enterprise – one that protects

the fundamental, bedrock values of legality in the common law tradition.

Correcting the chronic underestimation of public policy as a legal doctrine may have

important implications for our understanding of choice of law more generally. Scholars writing

in the American legal realist tradition have argued that the lack of coherence and logic in the

public policy exception, and its ‘political’ (rather than legal) function in choice of law doctrine,

reveals the fundamentally political and incoherent nature of classical choice of law

methodology.15 Indeed, for the American legal realists, the public policy exception was the

key doctrine that revealed the ultimately political and non-rule-governed nature of private

international law.16 By showing that the public policy exception is, in fact, ‘legal’ all the way

down, this dissertation may have implications for those who have drawn inferences from the

standard perception of the public policy exception to our more general understanding of private

international law as a field.

This project may also contribute to an emerging literature and jurisprudence on the

relationship between constitutional law (or constitutionalism) and private international law. As

Jacco Bomhoff outlines in a recent article, there have been three central aspects to the literature

and jurisprudence on this issue.17 Scholars and judges have considered: (1) how constitutional

law has affected the development of the rules of private international law (the constitution and

15 See e.g. Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of Laws (Cambridge, MA: Harvard University Press, 1949); Ernest G Lorenzen, Selected Articles on the Conflict of Laws (New Haven: Yale University Press, 1947) [Lorenzen]. 16 As Lorenzen remarks caustically, “The doctrine of public policy in the Conflict of Laws ought to have been a warning that there was something the matter with the reasoning upon which the rules to which it is the exception were supposed to be based.” Lorenzen, ibid at 13-14. Lorenzen goes on to build his critique of classical rules out of this observation. 17 Jacco Bomhoff, ‘The Constitution of the Conflict of Laws’ in Horatia Muir Watt & Diego P Fernández Arroyo, eds, Private International Law and Global Governance (Oxford: Oxford University Press, 2014) 262 [Bomhoff]. See also the extensive literature review offered by Bomhoff in this important piece.

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private international law); (2) how private international law has itself performed important

constitutional functions (private international law as constitutional law); and (3) how

constitutional law itself operates according to the techniques and principles of private

international law, at least at the level of analogy (constitutional law as private international

law). Bomhoff also proposes a fourth area of inquiry into the conflicts/constitutionalism

relationship (building on the latter two): understanding private international law as a

constitution – that is, as a source of legal normativity ‘best seen as constitutional in

character.’18

My work in this project may contribute, at least to some extent, to each of these four

fields of inquiry. By demonstrating that the public policy exception has worked to safeguard

the rule of law values of the common law constitution, I have shown how constitutional law

(in a capacious sense of the term) informs the development of private international law rules

(Bomhoff’s first category); it is the fundamental values of the common law constitution that

ground the public policy analysis. I have also shown how private international law doctrine

performs an essential constitutional function (Bomhoff’s second category), by offering a

doctrinal moment in which common law courts can ensure that any law they apply complies

with fundamental constitutional values. My analysis may also help those working to

understand constitutional law from the perspective of the doctrines and techniques of private

international law (Bomhoff’s third category), as it shows how the process of reviewing law for

compliance with values of legality is a core choice of law ‘technique’ that may help illuminate

debates over how judicial review is meant to operate in the constitutional context.

18 Bomhoff, ibid at 269.

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Finally, according to my account, public policy is also a site at which private

international law can help to develop constitutional values (Bomhoff’s fourth category),

because it is a unique doctrine that requires judges to explicitly and self-reflectively identify

the non-derogable values of their legal order. This dissertation may also help shed light on

what the ‘constitution of the conflict of laws’ might include. As Bomhoff argues, the standard

approach has been to focus on the architectural, quasi-federalist principles that private

international law has developed to allocate authority in transnational private law disputes. But

my work in this project suggests that there is also a background commitment in private

international law doctrine to substantive norms protecting core aspects of individual rights and

freedoms, as a means of protecting individuals from arbitrary exercises of power. This analysis

may therefore further the project of identifying the constitution of the conflict of laws.

Going forward, there are several other ways in which I plan to build upon the research

conducted for this dissertation. First, I plan to consider whether the account of the public policy

exception that I offer can accommodate the way in which the exception has been used in other

common law jurisdictions (particularly Commonwealth jurisdictions). Scholars have argued

that there may be a distinctive and emerging form of ‘Commonwealth’ constitutionalism

among Commonwealth states.19 Thus it would be worthwhile to explore whether my account

can explain how public policy has been used in other leading Commonwealth jurisdictions

such as Australia, India, New Zealand, and South Africa. If my common law constitutionalist

account of public policy is generalizable across the Commonwealth, this will strengthen the

19 See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge, UK: Cambridge University Press, 2013). Note, though that Gardbaum distinguishes this model from the common law constitutionalist approach. Ibid at 23-24.

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claim I have developed in this dissertation, and may offer new insight into common law

constitutionalist theory.

Similarly, I will also examine whether my rule of law account can explain how public

policy has operated beyond the choice of law context, in another branch of private international

law: the recognition and enforcement of foreign judgments. As I mentioned in Chapter 1,20

courts have long recognized a public policy exception to the law concerning recognition and

enforcement of foreign judgments, but as with the public policy exception in the choice of law

context, this exception has been rife with confusion and critique. I will therefore consider

whether my rule of law approach can make sense of this important doctrine as well.

I also plan to examine whether my rule of law account of the public policy exception

in private international law has implications for the use of the exception in the domestic private

law context. As I mentioned in Chapter 1, many domains of private law also include a public

policy exception, including property and contract law.21 If a restrictive covenant, trust, will, or

contract is found to violate public policy, it will be invalidated and a court will not enforce it

– in much the same way that a foreign law that is found to violate public policy will not be

applied by the forum court. And like the private international law public policy exception, the

domestic public policy exception has also been criticized for adding uncertainty and

indeterminacy to legal rules.

Given the structural similarity between public policy in domestic and international

private law, I will explore whether the rule of law account of public policy that I develop in

my current research can help to explain how public policy operates in the domestic private law

context. In particular, I will examine whether the fundamental substantive rule of law values

20 See supra Chapter 1, Part IV.D. 21 See supra Chapter 1, Part I.B.

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that have been articulated by common law constitutionalists can help to explain why certain

restrictive covenants, trusts, wills, and contracts are found to violate public policy.22 Perhaps

the liberty and equality principles that I articulate in my current work can account for the

domestic law use of public policy, and can bring conceptual coherence to the use of public

policy in private law.

Conclusion

This dissertation has offered a novel common law constitutionalist account of the

public policy exception in choice of law doctrine. I have argued that common law

constitutionalism can make sense of the role the exception is meant to play, the values that

should guide its use, and how common law courts have used the exception in practice. This

analysis also has important implications for our understanding of what judges take to be the

fundamental values of the common law legal tradition, and for common law constitutionalism

as a theory of the rule of law. In future work, I hope to draw out the implications of this analysis

for private international law more generally. I also plan to expand my analysis to other areas

of law and to other jurisdictions, to see if my rule of law account of public policy is

generalizable.

22 The issue of how to understand public policy in these contexts remains a live issue in Canadian jurisprudence. For example, in a recent Supreme Court of Canada case, a key point of disagreement among the justices was how to interpret the public policy exception in contract: see Douez v Facebook, Inc, 2017 SCC 33.

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BIBLIOGRAPHY

1. Monographs and Edited Collections

Alexy, Robert, The Argument from Injustice: A Reply to Legal Positivism, trans by Bonnie Litschewski Paulson & Stanley L Paulson (Oxford: Clarendon Press, 2002).

Allan, TRS, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001).

Allan, TRS, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Clarendon Press, 1993).

Allan, TRS, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford: Oxford University Press, 2013).

Allison, JWF, The English Historical Constitution (Cambridge, UK: Cambridge University Press, 2007).

Allott, Philip, Towards the International Rule of Law: Essays in Integrated Constitutional Theory (London: Cameron May, 2005).

Anzilotti, Dionisio, Cours de droit international, trans Gilbert Gidel, 3d ed (Paris: Recueil Sirey, 1929).

Anzilotti, Dionisio, Teoria generale della responsabilita dello state nel dirrito internazionale (Florence: 1902).

Aust, Helmut Philipp, Complicity and the Law of State Responsibility (Cambridge, UK: Cambridge University Press, 2011).

Austin, Lisa M & Dennis Klimchuk, Private Law and the Rule of Law (Oxford: Oxford University Press, 2014).

Baer, Marvin et al, Private International Law in Common Law Canada: Cases, Text, and Materials (Toronto: Emond Montgomery Publications Ltd, 1997).

Banu, Roxana, From Conflicts of Sovereignty to Relationships: Recovering Nineteenth Century Relational Internationalist Perspectives in Private International Law (Oxford: Oxford University Press, 2018).

Basedow, Jürgen & Toshiyuki Kono, eds, An Economic Analysis of Private International Law (Tübingen, Germany: Mohr Siebeck, 2006).

Basedow, Jürgen, Giesela Rühl, Franco Ferrari, & Pedro de Miguel Asensio, eds, Encyclopedia of Private International Law (Edward Elgar: 2017).

311

Batiffol, Henri & Paul Lagarde, Droit international privé, 8th ed (Paris: Librairie générale de droit et de jurisprudence, 1993).

Baty, T, Polarized Law: Three Lectures on Conflicts of Law Delivered at the University of London (London: Stevens & Haynes, 1914).

Beale, Joseph Henry, A Treatise on the Conflict of Laws: Or, Private International Law (Cambridge, MA: Harvard University Press, 1916).

Bellamy, Richard, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge, UK: Cambridge University Press, 2007).

Benton, Lauren & Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800-1850 (Cambridge, MA: Harvard University Press, 2016).

Bergsmo, Morten, et al, Historical Origins of International Criminal Law (TOAEP, 2015).

Bingham, Tom, The Rule of Law (London: Penguin Books, 2010).

Birks, Peter, Unjust Enrichment, 2d ed (Oxford: Oxford University Press, 2005).

Blackstone, Sir William, Commentaries on the Law of England, 1st ed (Oxford: Clarendon Press, 1765).

Bradley, Keith, Cambridge World History of Slavery (Cambridge, UK: Cambridge University Press, 2013).

Briggs, Adrian, Agreement on Jurisdiction and Choice of Law (Oxford: Oxford University Press, 2008).

Briggs, Adrian, The Conflict of Laws, 2d ed (Oxford: Oxford University Press, 2008).

Briggs, Adrian, The Conflict of Laws, 3d ed (Oxford: Oxford University Press, 2013).

Brilmayer, Lea, Conflict of Laws, 2d ed (USA: Little, Brown, and Co, 1995).

Brownlie, Ian, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Kluwer Law International, 1998).

Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004).

Brudner, Alan, The Unity of the Common Law, 2d ed (Oxford: Oxford University Press, 2012).

Brudner, Alan, The Unity of the Common Law: Studies in Hegelian Jurisprudence (Berkley and Los Angeles, CA: University of California Press, 1995).

Brunnée, Jutta & Stephen J Toope, Legitimacy and Legality in International Law (Cambridge, UK: Cambridge University Press, 2010).

312

Calder, Gillian & Lori Beaman, eds, Polygamy’s Rights and Wrongs (Vancouver: UBC Press, 2014).

Castel, J-G, Canadian Conflict of Laws, 4th ed (Toronto and Vancouver: Butterworths, 1997).

Castel, J-G, Conflict of Laws: Cases, Notes & Materials, 4th ed (Toronto: Buttersworths, 1978).

Chavan, RS, Indian Private International Law (New Delhi: Sterling Publishers Private Ltd,1982).

Cheshire, GC, Private International Law (Oxford: Clarendon Press, 1935).

Clarkson, CMV & Jonathan Hill, The Conflict of Laws, 4th ed (Oxford: Oxford University Press, 2011).

Collier, KG, Conflict of Laws, 3d ed (Cambridge, UK: Cambridge University Press, 2001).

Collins, Sir Lawrence, ed, Dicey, Morris and Collins on the Conflict of Laws, 14th ed (London: Sweet & Maxwell, 2006).

Cook, Walter Wheeler, The Logical and Legal Bases of the Conflict of Laws (Cambridge, MA: Harvard University Press, 1942).

Cosgrove, Richard A, The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapel Hill, NC: University of North Carolina Press, 1980).

Cover, Robert M, Justice Accused: Antislavery and the Judicial Process (New Haven and London: Yale University Press 1975).

Crawford, James, Alain Pellet, & Simon Olleson, eds, The Law of International Responsibility (Oxford: Oxford University Press, 2010).

Crawford, James, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2008).

Crawford, James, International Law as an Open System (London: Cameron May, 2002).

Crawford, James, State Responsibility: The General Part (Cambridge, UK: Cambridge University Press, 2013).

Criddle, Evan J & Evan Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (Oxford: Oxford University Press, 2016).

Currie, Brainerd, Selected Essays on the Conflict of Laws (Durham, NC: Duke University Press, 1963).

Daynes, Kathryn M, More Wives Than One: Transformation of the Mormon Marriage System, 1840-1910 (Urbana and Chicago: University of Illinois Press, 2001).

313

de Hoogh, André, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (The Hague: Kluwer Law International, 1996).

De Montmorency, JEG, John Gorell Barnes, First Lord Gorell (1848-1913): A Memoir (London: J Murray, 1920).

Dicey, AV, A Digest of the Law of England with Reference to the Conflict of Laws, 2d ed (London: Stevens and Sons, 1908).

Dicey, AV, Introduction to the Study of the Law of the Constitution, reprint of 8th ed from 1915 (Indianapolis: Liberty Fund, 1982).

Dirks, Nicholas B, Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001).

Diwan, Paras, Private International Law: Indian and English, 2d ed (New Delhi: Deep & Deep Publications, 1988).

Dubber, Markus D & Tatjana Hörnle, eds, Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014).

Dugard, John, Recognition and the United Nations (Cambridge, UK: Grotius Publications Ltd, 1987).

Dworkin, Ronald, Justice in Robes (Cambridge, MA and London: Belknap Press, 2006).

Dworkin, Ronald, Law’s Empire (Cambridge, MA: Belknap Press, 1986).

Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).

Dyzenhaus, David & Malcolm Thorburn, Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016).

Dyzenhaus, David & Thomas Poole, eds, Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge, UK: Cambridge University Press, 2015).

Dyzenhaus, David, ed, Recrafting the Rule of Law: The Limits of Legal Order (Oxford and Portland, OR: Hard Publishing, 1999).

Dyzenhaus, David, ed, The Unity of Public Law (Oxford and Portland, OR: Hart Publishing, 2004).

Dyzenhaus, David, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2d ed (Oxford: Oxford University Press, 2010).

Dyzenhaus, David, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997).

314

Dyzenhaus, David, Murray Hunt, & Grant Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford: Hart Publishing, 2009).

Dyzenhaus, David, Sophia Reibetanz Moreau, & Arthur Ripstein, eds, Law and Morality: Readings in Legal Philosophy, 3d ed (Toronto: University of Toronto Press, 2007).

Dyzenhaus, David, The Constitution of Law: Legality in a Time of Emergency (Cambridge, UK: Cambridge University Press, 2006).

Edlin, Douglas E, ed, Common Law Theory (Cambridge, UK: Cambridge University Press, 2007).

Edlin, Douglas E, Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review (Ann Arbor, MI: University of Michigan Press, 2008).

Elliot, Mark & David Feldman, eds, The Cambridge Companion to Public Law (Cambridge, UK: Cambridge University Press, 2015).

Falconbridge, John Delatre, Essays on the Conflict of Laws, 2d ed (Toronto: Canada Law Book Co, 1954).

Ferguson, Niall, Empire (London: Allen Lane, 2003).

Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, NC: University of North Carolina Press, 1981).

Follesdal, Andreas & Reidar Maliks, Kantian Theory and Human Rights (New York: Routledge, 2014).

Forsyth, Christopher, ed, Judicial Review and the Constitution (Oxford and Portland, OR: Hart Publishing, 2000).

Forsyth, Christopher, Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts, 5th ed (Cape Town: Juta and Co, Inc, 2012).

Fournier, Pascale, Muslim Marriage in Western Courts: Lost in Transplantation (Farnham, England: Ashgate Publishing Ltd, 2010).

Fox-Decent, Evan, Sovereignty’s Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011).

Fox, Hazel & Philippa Webb, The Law of State Immunity, 3d ed (Oxford: Oxford University Press, 2013).

Fox, Hazel, The Law of State Immunity, 2d ed (Oxford: Oxford University Press, 2008).

Franck, Thomas M, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (Princeton: Princeton University Press, 1992).

315

Friedmann, Daniel & Daphne Barak-Erez, eds, Human Rights in Private Law (Oxford and Portland, OR: Hart Publishing, 2001).

Fuller, Lon L, The Morality of Law, rev ed (New Haven and London: Yale University Press, 1969).

Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge, UK: Cambridge University Press, 2013).

Gathii, James Thuo, War, Commerce, and International Law (New York: Oxford University Press, 2010).

Ghodoosi, Farshad, International Dispute Resolution and the Public Policy Exception (Oxford: Routledge, 2017).

Gilmore, Stephen, Jonathan Herring, & Rebecca Probert, eds, Landmark Cases in Family Law (Oxford: Hart Publishing, 2011).

Goldsworthy, Jeffrey, Parliamentary Sovereignty: Contemporary Debates (Cambridge, UK: Cambridge University Press, 2010).

Gottschalk, Eckart, Ralf Michaels, Giesela Rühl, & Jan von Hein, eds, Conflict of Laws in a Globalized World (Cambridge, UK: Cambridge University Press, 2007).

Graveson, RH, Conflict of Laws: Private International Law, 5th ed (London: Sweet & Maxwell, 1965).

Graveson, RH, Conflict of Laws: Private International Law, 7th ed (London: Sweet & Maxwell, 1974).

Hancock, Moffatt, Torts in the Conflict of Laws (Chicago: Callaghan & Co, 1942).

Hannikainen, Lauri, Peremptory norms (jus cogens) in international law: Historical development, criteria, present status (Helsinki: Finnish Lawyers’ Publishing Co, 1988).

Hathaway, Oona A & Scott J Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017).

Hayek, FA, Law, Legislation and Liberty: The Political Order of a Free People (Routledge & Kegan Paul, 1982).

Hellman, Deborah, When is Discrimination Wrong? (Cambridge, MA: Harvard University Press, 2008).

Hershovitz, Scott, ed, Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford: Oxford University Press, 2006).

316

Higgins, Rosalyn, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994).

Hobson, JA, Imperialism: A Study (New York: James Potts & Co, 1902).

Hunt, Murray, Using Human Rights Law in English Courts (Oxford: Hart Publishing, 1997).

Huscroft, Grant, ed, Expounding the Constitution: Essays in Constitutional Theory (Cambridge, UK: Cambridge University Press, 2008).

Hutchison, Allan C & Patrick Monahan, eds, The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987).

Hyde, John, Mormonism: Its Leaders and Designs (New York: WP Fetridge, 1857).

Jennings, Sir Robert & Sir Arthur Watts, Oppenheim’s International Law, 9th ed (London: Longman, 1992).

Joerges, Christian, Inger-Johanne Sand, & Gunther Tuebner, eds, Transnational Governance and Constitutionalism (Oxford and Portland, OR: Hart Publishing, 2004).

Kahn, Franz, Abhandlungen zum internationalen Privatrecht, vol 1 (1928).

Keifer, Howard E & Milton K Munitz, eds, Ethics and Social Justice (Albany, NY: SUNY Press, 1968).

Kelsen, Hans, Peace Through Law (Chapel Hill: University of North Carolina Press, 1944).

Kiestra, LR, The Impact of the European Convention on Human Rights on Private International Law (TMC Asser Press: 2014).

King, Gary, Robert O Keohane, & Sidney Verba, Designing Social Inquiry: Scientific Inference in Qualitative Research (Princeton: Princeton University Press, 1994).

Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge, UK: Cambridge University Press, 2001).

Kostal, RW, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005).

Lauterpacht, H, Private Law Sources and Analogies of International Law (With Special Reference to International Arbitration), 4th ed (Union, NJ: Lawbook Exchange, Ltd, 2002).

Lauterpacht, H, Recognition in International Law (Cambridge, UK: Cambridge University Press, 1947).

Lauterpacht, H, The Function of Law in the International Community (Oxford: Clarendon Press, 1933).

317

Lewis, Geoffrey, FA Mann: A Memoir (Oxford and Portland, OR: Hart Publishing, 2013).

Lippert-Rasmussen, Kasper, Born Free and Equal? A Philosophical Inquiry into the Nature of Discrimination (Oxford: Oxford University Press, 2014).

Llewellyn, Karl N, Jurisprudence: Realism in Theory and Practice (New Brunswick, NJ: Transaction Publishers, 2008).

Lloyd, Dennis, Public Policy: A Comparative Study in English and French Law (London: The Athelone Press, 1953).

Lorenzen, Ernest G, Selected Articles on the Conflict of Laws (New Haven: Yale University Press, 1947).

MacFarlane, Peter JM & Simon Fisher, Churches, Clergy, and the Law (Leichhardt, NSW: The Federation Press, 1996).

Macklem, Patrick, The Sovereignty of Human Rights (Oxford: Oxford University Press, 2015).

Malatesta, Alberto et al, eds, The External Dimension of EC Private International Law in Family and Succession Matters (Milan: CEDAM, 2008).

Mann, FA, Further Studies in International Law (Oxford: Clarendon Press, 1990).

Mann, FA, Studies in International Law (Oxford: Clarendon Press, 1973).

Martinez, Jenny S, The Slave Trade and the Origins of International Human Rights Law (Oxford: Oxford University Press, 2012).

Maurer, Anton G, The Public Policy Exception Under the New York Convention: History, Interpretation and Application (Huntington, NY: JurisNet LLC, 2012).

McCamus, John D, The Law of Contracts, 2d ed (Toronto: Irwin Law, 2012).

McClean, David & Kisch Beevers, The Conflict of Laws, 6th ed (London: Sweet & Maxwell Ltd, 2005).

McDonald, Terrence J, ed, The Historic Turn in the Human Sciences (Ann Arbor: University of Michigan Press, 1996).

McLeod, James G, The Conflict of Laws (Calgary: Carswell Legal Publications, 1983).

Mehdi, Rubya, Werner Menski, & Jørgen S Nielsen, eds, Interpreting divorce laws in Islam (Copenhagen: Djøf Publishers, 2012).

Mill, JS, On Liberty, 2d ed (London: Parker & Sons, 1859).

318

Mills, Alex, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law (Cambridge, UK: Cambridge University Press, 2009).

Murphy, John, International Dimensions in Family Law (Manchester: Manchester University Press, 2005).

North, PM & JJ Fawcett, Cheshire & North’s Private International Law, 11th ed (London: Butterworths, 1987).

North, PM & JJ Fawcett, Cheshire & North’s Private International Law, 12th ed (London, Dublin, and Edinburgh: Butterworths, 1992).

North, PM & JJ Fawcett, Cheshire & North’s Private International Law, 13th ed (London, Dublin, and Edinburgh: Butterworths, 1999).

Nussbaum, Arthur, Principles of Private International Law (New York: Oxford University Press, 1943).

Nygh, PE, Conflict of Laws in Australia, 5th ed (Australia: Butterworths, 1991).

Nygh, Peter, Autonomy in International Contracts (Oxford: Clarendon Press, 1999).

Nyquist, Mary, Arbitrary Rule: Slavery, Tyranny, and the Power of Life and Death (Chicago: University of Chicago Press, 2013).

O’Brien, John, Conflict of Laws, 2d ed (London & Sydney: Cavendish Publishing Ltd, 1999).

Oliver, Dawn, Common Values and the Public-Private Divide (London: Buttersworths, 1999).

Oliver, P, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand (Oxford: Oxford University Press, 2005).

Oppong, Richard Frimpong, Private International Law in Commonwealth Africa (Cambridge, UK: Cambridge University Press, 2013).

Orakhelashvili, Alexander, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006).

Parry, Benita & Michael Sprinker, Delusions and Discoveries: India in the British Imagination, 1880-1930 (London and New York: Verso, 1998).

Pettit, Philip, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge, UK: Cambridge University Press, 2012).

Pruthi, RK, ed, Indian Caste System (New Delhi: Discovery Publishing House, 2004).

Ramraj, Victor, ed, Emergencies and the Limits of Legality (Cambridge, UK: Cambridge University Press, 2008).

319

Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979).

Ripstein, Arthur, ed, Ronald Dworkin (Cambridge, UK: Cambridge University Press, 2007).

Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard University Press, 2009).

Robino-Sammartano, Mauro, International Arbitration Law and Practice, 2d ed (The Hague, Kluwer Law International, 2001).

Root, Elihu, The Outlook for International Law (Boston, MA: World Peace Foundation, 1916).

Rozakis, Christos L, The Concept of Jus Cogens in the Law of Treaties (Amsterdam: North-Holland Publishing Co, 1976).

Rundle, Kristen, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford and Portland, OR: Hart Publishing, 2012).

Sajo, Andras & Renata Uitz, eds, The Tragedy of Liberty (The Hague: Eleven International Publishers, 2015).

Schmidtz, David & Carmen Pavel, eds, The Oxford Handbook of Freedom (Oxford: Oxford University Press, 2015).

Scott, Craig, ed, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford and Portland, OR: Hart Publishing, 2001).

Peari, Sagi, The Foundation of Choice of Law: Choice and Equality (Oxford: Oxford University Press, 2018).

Shklar, Judith N, Legalism (Cambridge, MA: Harvard University Press, 1964).

Shyllon, Fólarin Olawale, Black Slaves in Britain (Oxford: Oxford University Press, 1974).

Singer, Milton B & Bernard S Cohn, eds, Structure and Change in Indian Society (Chicago: Aldine Publishers, 1968).

Smith, Stephen A, Contract Theory (Oxford: Oxford University Press, 2004).

Solis, Gary D, The Law of Armed Conflict: International Humanitarian Law in War, 2d ed (Cambridge, UK: Cambridge University, 2016).

Stimson, Edward S, Conflict of Laws (Buffalo, NY: Dennis & Co, Inc, 1963).

Story, Joseph, Commentaries on the Conflict of Laws: Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments, 1st ed (Boston: Hilliard, Gray, 1834).

320

Stretton, Tim & Krista J Kesselring, eds, Married women and the law: Coverture in England and the common law world (Montreal & Kingston: McGill-Queen's University Press, 2013).

Stumberg, George Wilfred, Principles of the Conflict of Laws (Chicago: Foundation Press, 1937).

Szászy, István, Conflict of Laws in the Western, Socialist and Developing Countries, trans by József Decsényi (Leiden: AW Sijthoff, 1974).

Tamanaha, Brian Z, On the Rule of Law: History, Politics, Theory (Cambridge, UK: Cambridge University Press, 2004).

Thomas, Jean, Public Rights, Private Relations (Oxford: Oxford University Press, 2015).

Tomkins, Adam, Our Republican Constitution (Oxford and Portland, OR: Hart Publishing, 2005).

Tomkins, Adam, Public Law (Oxford: Oxford University Press, 2003).

Tomuschat, Christian & Jean-Marc Thouvenin, eds, The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Leiden: Nijhoff, 2006).

Turner, John G, Brigham Young: Pioneer Prophet (Cambridge, MA: Belknap Press, 2012).

Ulrich, Laurel Thatcher, A House Full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870 (New York: Knoff, 2017).

van der Veer, Peter, Imperial Encounters: Religion and Modernity in India and Britain (Princeton: Princeton University Press, 2001).

von Savigny, Friedrich Carl, Private International Law: A Treatise on the Conflict of Laws: And the Limits of Their Operation in Respect of Place and Time, trans by William Guthrie (Edinburgh & London: T & T Clark, 1869).

Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999).

Waluchow, Wil & Stefan Sciaraffa, eds, The Legacy of Ronald Dworkin (Oxford: Oxford University Press, 2016).

Walvin, James, The Zong: A Massacre, The Law, and the End of Slavery (New Haven: Yale University Press, 2011).

Watson, Alan, Comparative Law: Law, Reality and Society, 2d ed (USA: Vandeplas Publishing, 2008).

Watt, Horatia Muir & Diego P Fernández Arroyo, eds, Private International Law and Global Governance (Oxford: Oxford University Press, 2014).

321

Weiler, Joseph HH, Antonio Cassese, & Marina Spinedi, International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin and New York: Walter de Gruyter, 1989).

Weinrib, Ernest J, The Idea of Private Law, rev ed (Oxford: Oxford University Press, 2012).

Weinrib, Ernest, Corrective Justice (Oxford: Oxford University Press, 2012).

Weinrib, Jacob, Dimensions of Dignity (Cambridge, UK: Cambridge University Press).

Wellens, Karel, ed, International Law: Theory and Practice (The Hague: Kluwer, 1998).

West, Robin L, Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of Law (Aldershot, UK: Ashgate Publishing Ltd, 2003).

Westlake, John, A Treatise on Private International Law or the Conflict of Laws (Philadelphia: T & JW Johnson & Co, 1859).

Wise, Steven M, Though the Heavens May Fall: The Landmark Trial That Led to the End of Human Slavery (Cambridge, MA: Da Capo Press, 2005).

Wolff, Martin, Private International Law (Oxford: Oxford University Press, 1945).

Wong, Edlie L, Neither Fugitive nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel (New York and London: New York University Press, 2009).

2. Articles

‘Conflict of Laws: “Party Autonomy” in Contracts’ (1957) 57:4 Colum L Rev 553.

Adodo, Ebenezer OI, ‘Enforcement of Foreign Gambling Debts: Mapping the Worth of the Public Policy Defence’ (2005) 1:2 J Priv Intl L 291.

Ago, Roberto, ‘Le délit international’ (1939) 68 Receuil de cours 419.

Ahmad, Nehaluddin, ‘A Critical Appraisal of “Triple Divorce” in Islamic Law’ (2009) 23:1 International Journal of Law, Policy and the Family 53.

Akehurst, Michael, ‘Reprisals by Third States’ (1970) 44 Brit YB Int’l L 1.

Allan, TRS, ‘Book Review, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, by Kristen Rundle’ (2013) 72:3 Cambridge LJ 753.

Allan, TRS, ‘In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law’ (2009) 22:1 Can JL & Jur 187.

Allan, TRS, ‘Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’ (1985) 44 Cambridge LJ 111.

322

Allan, TRS, ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’ (1999) 115 LQR 271.

BA Wortley, ‘The Concept of Man in English Private International Law’ (1947) 33 Transactions of the Grotius Society 147.

Bailey, Martha, ‘How will Canada Respond to Same-Sex Marriage?’ (1998-1999) 32 Creighton L Rev 105.

Barak, Aharon, ‘Constitutional Human Rights and Private Law’ (1996) 3:2 Rev Const Stud 218.

Bartholomew, GW, ‘Recognition of Polygamous Marriages in Canada’ (1961) 10 ICLQ 305.

Baum, Bruce, ‘Feminism, Liberalism and Cultural Pluralism: JS Mill on Mormon Polygyny’ (1997) 5:3 Journal of Political Philosophy 230.

Beach, John K, ‘Uniform Interstate Enforcement of Vested Rights’ (1918) 27:5 Yale LJ 656.

Beckett, WE, ‘The Recognition of Polygamous Marriages Under English Law’ (1932) 48 Law Q Rev 341.

Bederman, David J, ‘Compulsory Pilotage, Public Policy, and the Early Private International Law of Torts’ (1989-1990) 64 Tul L Rev 1033.

Benson, Peter, ‘The Idea of Consideration’ (2011) 61 UTLJ 241.

Blix, HM, ‘Collective Recognition and Non-Recognition’ (1970) 130:2 Hague Recueil 587.

Blom, Joost, ‘Public Policy in Private International Law and its Evolution in Time’ [2003] Nethl Intl L Rev 373.

Blom, Joost, ‘The Enforcement of Foreign Judgments: Morguard Goes Forth into the World’ (1997) 28 Can Bus LJ 373.

Bridgeman, Curtis, ‘Corrective Justice in Contract law: Is there a Case for Punitive Damages?’ (2003) 56:1 Vand L Rev 237.

Briggs, Adrian, ‘Public Policy in the Conflict of Laws: A Sword and a Shield?’ (2002) 6 Sing JICL 953.

Brownlie, Ian, ‘Recognition in Theory and Practice’ (1982) 53 BYIL 197.

Burger, DC, ‘Transnational Public Policy as a Factor in Choice of Law Analysis’ (1984) 5 NYL Sch J Int’l & Comp L 370.

Byers, Michael, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic Journal of International Law 211.

323

Carroll, Lucy, ‘Recognition of polygamous marriages in English matrimonial law: The statutory reversal of Hyde v Hyde in 1972’ (1984) 5:1 Institute of Muslim Minority Affairs 81.

Carruthers, Janeen M & Elizabeth B Crawford, ‘Kuwait Airways Corporation v Iraqi Airways Company’ (2003) 52 ICLQ 761.

Carruthers, Janeen, ‘Party Autonomy in the Legal Regulation of Adult Relationships: What Place for Party Choice in Private International Law?’ (2012) 61:4 ICLQ 881.

Carter, PB, ‘The Rôle of Public Policy in English Private International Law’ (1993) 42 ICLQ 1.

Chong, Adeline, ‘The Public Policy and Mandatory Rules of Third Countries in International Contracts’ (2006) 2:1 J Priv Intl L 27.

Collier, JC, ‘Public Policy and Foreign Judgments – Undue Influence – A Difficult Answer to a Simple Problem’ (1984) 43:1 Cambridge LJ 47.

Cotter, William R, ‘The Somerset Case and the Abolition of Slavery in England’ (1994) 79 History 31.

Craig, Paul P, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) 21 Public Law 467.

Crawford, James, ‘International Law and the Rule of Law’ (2003) 24 Adel LR 3.

Criddle, Evan J & Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale J Int’l L 331.

Dagan, Hanoch & Avihay Dorfman, ‘Interpersonal Human Rights’ (2018) 51 Cornell Intl LJ 361.

Davies, Martin, ‘Kuwait Airways Corp v Iraqi Airways Co: The Effect in Private International Law of a Breach of Public International Law by a State Actor’ (2001) 2 Melbourne Journal of International Law 523.

Deech, Ruth, ‘Immigrants and Family Law’ (1973) New Law Journal 110.

Denike, Margaret, ‘The Racialization of White Man’s Polygamy’ (2010) 25:4 Hypatia 852.

Dicey, AV, ‘Chetti v Chetti’ (1909) 25 Law Q Rev 202.

Dodge, William S, ‘Breaking the Public Law Taboo’ (2003) 43 Harv Intl LJ 161.

Dolinger, Jacob, ‘World Public Policy: Real International Public Policy in the Conflict of Laws’ (1982) 17 Tex Int’l LJ 167.

324

Dransfield, Scott, ‘Charles Dickens and the Victorian “Mormon Moment”’ (2013) 17 Religion and the Arts 489.

Dupuy, Pierre-Marie, ‘Dionisio Anzilotti and the Law of International Responsibility of States’ (1992) 3 EJIL 139.

Dupuy, Pierre-Marie, ‘The International Law of State Responsibility: Revolution Or Evolution?’ (1989) 11 Mich J Int’l L 105.

Dworkin, Ronald, ‘A New Philosophy for International Law’ (2013) 41:1 Philosophy and Public Affairs 2.

Dworkin, Ronald, ‘Comments on the Unity of Law Doctrine (A Response)’ in Howard Evans Kiefer & Milton Karl Munitz, eds, Ethics and Social Justice, vol 4 (SUNY Press: Albany, 1968).

Dyzenhaus, David, ‘Constituting the Rule of Law: Fundamental Values in Administrative Law’ (2002) Queen’s LJ 445.

Dyzenhaus, David, ‘Hobbes on the International Rule of Law’ (2014) 28:1 Ethics & International Affairs 53.

Dyzenhaus, David, ‘Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought’ (2015) 16:2 Theor Inq L 337.

Dyzenhaus, David, ‘Process and Substance as Aspects of the Public Law Form’ (2015) 74:2 Cambridge LJ 284.

Dyzenhaus, David, ‘Rand’s Legal Republicanism’ (2010) 55 McGill LJ 491.

Dyzenhaus, David, ‘The Rule of (Administrative) Law in International Law’ (2005) 68 Law & Contemp Probs 127.

Dyzenhaus, David, Murray Hunt, & Michael Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1:1 OUCLJ 5.

Ebbinghaus, Julius, ‘The Law of Humanity and the Limits of State Power’ (1953) 3:10 Philosophical Quarterly 14.

Ehrenzweig, Albert A, ‘Miscegenation in the Conflict of Laws’ (1960) 45:4 Cornell L Rev 659.

Ellis, Mark, ‘Toward a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice’ (2010) 72 U Pitt L Rev 191.

Endicott, T, ‘The Reason of Law’ (2003) 48 Am J Juris 83.

325

Ernest J Weinrib, ‘Punishment and Disgorgement as Contract Remedies’ (2003) 78:1 Chicago-Ken L Rev 55;

Fagan, Neil, ‘Enforcement of Gambling Debts in England’ (1986-1987) 8 New York Law School Journal of International and Comparative Law 7.

Fiddes, Edward, ‘Lord Mansfield and the Sommersett Case’ (1934) 50 Law Q Rev 499.

Forde, M, ‘The “Ordre Public” Exception and Adjudicative Jurisdiction Conventions’ (1980) 29 ICLQ 259.

Forsyth, CF, ‘When Can a Foreign Illegality Taint an English Contract?’ (1987) 46 Cambridge LJ 404.

Fournier, Pascale, ‘Flirting with God in Western Secular Courts: Mahr in the West’ (2009) Intl JL Pol’y & Fam.

Fox-Decent, Evan, ‘Democratizing Common Law Constitutionalism’ (2010) 55:3 McGill LJ 511.

Fox-Decent, Evan, ‘Is the Rule of Law Really Indifferent to Human Rights?’ (2008) 27 Law & Phil 533.

Fragistas, N, ‘La Compétence Internationale en Droit Privé’ (1961) 104 Recueil des cours 159.

Fraser, David, ‘“This is not like any other legal question”: A Brief History of Nazi Law Before UK and US Courts’ (2003) 19 Conn J Intl L 59.

Freeman, MDA, ‘Marriage and Divorce in England’ (1995) 29 Family Law Quarterly 549.

Freeman, Michael, ‘The Morality of Cultural Pluralism’ (1995) 3 Int’l J Child Rts 1.

Fuller, Lon, ‘The Forms and Limits of Adjudication’ (1978) 92:2 Harv L Rev 353.

Gaja, Giorio, ‘Positivism and Dualism in Dionisio Anzilotti’ (1992) 3 EJIL 123.

Graveson, RH, ‘The Fuld Case’ (1966) 15:4 ICLQ 937.

Greenberg, Mark, ‘How Facts Make Law’ 10 Leg Theory 157.

Habicht, Max, ‘The Application of Soviet Laws and the Exception of Public Order’ (1927) 21:2 AJIL 238.

Hancock, Moffatt, ‘Canadian-American Torts in the Conflict of Laws: The Revival of Policy Determined Construction Analysis’ (1968) 46 Can Bar Rev 226.

Hancock, Moffatt, ‘Choice-of-Law Policies in Multiple Contact Cases’ (1943) 5 UTLJ 133.

326

Harris, BV, ‘Government “Third Source” Action and Common Law Constitutionalism’ (2010) 126 LQR 373.

Hartley, TC, ‘Divorce without Consent: Duress as a Ground for Refusing to Recognise a Foreign Decree’ (1971) 34 Mod L Rev 455.

Hartley, TC, ‘Polygamy and Social Policy’ (1969) 32 Mod L Rev 155.

Hartley, TC, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35:6 Mod L Rev 571.

Henkin, Louis, ‘Is there a “Political Question” Doctrine?’ (1976) 85:5 Yale LJ 597.

Hessel E Yntema, ‘“Autonomy” in Choice of Law’ (1952) 1:4 Am J Comp L 341

Hessel E Yntema, ‘Contract and Conflict of Laws: “Autonomy” in Choice of Law in the United States’ (1955) 1 New York Law Forum 46 at 47

Hodgson, Louis-Philippe, ‘Kant on the Right to Freedom: A Defense’ (2010) 120 Ethics 791.

Holder, William E, ‘Public Policy and National Preferences: The Exclusion of Foreign Law in English Private International Law’ (1968) 17 ICLQ 926.

Holmes, Oliver Wendell, ‘The History of Agency’ (1882) 5 Harv L Rev 1.

Horner, Matthew, ‘Charter Values: The Uncanny Valley of Canadian Constitutionalism’ (2014) 67 Supreme Court Law Review 361.

Hoversten, Paul A, ‘Punishment but Not a Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law’ (2016) 116 Mich L Rev 759.

Hulsebosch, Daniel J, ‘Nothing but Liberty: “Somerset’s Case” and the British Empire’ (2006) 24:3 Law and History Review 647.

Hulsebosch, Daniel J, ‘Somserset’s Case at the Bar: Securing the “Pure Air” of English Jurisdiction within the British Empire’ (2007) 13 Tex Wesleyan L Rev 699.

Hunt, PMA, ‘Error in the Contract of Marriage’ (1963) 80 S African LJ 231.

Husserl, Gerhart, ‘Public Policy and Ordre Public’ (1938-1939) 25 Va L Rev 37.

Hutchinson, AC, ‘Bolivian Betrayal: Public Policy and Recognition of Foreign Divorces’ (1978) 41:1 Mod L Rev 91.

Hyde, James N, ‘The Act of State Doctrine and the Rule of Law’ (1959) 53:3 AJIL 635.

Jennings, RY, ‘Conflict of Law – Contract Illegal by Foreign Law – Whether Enforceable in England’ (1956) 14 Cambridge LJ 141.

327

Jessup, Phillip C, ‘A half-century of efforts to substitute law for war’ (1960) 9 Rec des Cours 3.

Jowell, Jeffrey, ‘The Legal Control of Administrative Discretion’ (1973) Public Law 178.

Kahn-Freund, Otto, ‘Reflections on Public Policy in the English Conflict of Laws’ (1954) 39 Transactions of the Grotius Society 39.

Karsh, Efraim, ‘Reflections on the 1990-1991 Gulf Conflict’ (1996) 19:3 Journal of Strategic Studies 303.

Karsten, IGF, ‘Child Marriages’ (1969) 32 Mod L Rev 212.

Kennedy, Duncan, ‘The Stages of the Decline of the Public/Private Distinction’ (1982) 130 U Pa L Rev 1349.

Knight, WSM, ‘Public Policy in English Law’ (1922) 38 L Q Rev 207.

Knop, Karen, ‘Citizenship, Public and Private’ (2008) 71 Law & Contemp Probs 309.

Knop, Karen, ‘International Law: Here and There’ (2002) 32 NYUJ Int’l L & Pol 501.

Knop, Karen, Ralf Michaels, & Annelise Riles, ‘From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style’ (2012) 64 Stan L Rev 589.

Koppelman, Andrew, ‘Same-sex Marriage and Public Policy: The Miscegenation Precedents’ (1996) 16 Quinnipiac L Rev 105.

Koskenniemi, Martti, ‘Solidarity Measures: State Responsibility as New International Order?’ (2000) 72 Brit YB Int’l L 337.

Lakin, Stuart, ‘Defending and Contesting the Sovereignty of Law: The Public Lawyer as Interpretivist’ (2015) 78:3 Mod L Rev 549.

Lauterpacht, H, ‘Is International Law a Part of the Law of England?’ (1939) 25 Transactions of the Grotius Society 51.

Lauterpacht, H, ‘Règles générale du droit de la paix’ (1937) Receuil de cours.

Laws, Sir John, ‘The Constitution: Morals and Rights’ (1996) Public Law 622.

Lecourt, Sebastian, ‘The Mormons, the Victorians, and the Idea of Greater Britain’ (2013) 56:1 Victorian Studies 85.

Lee, Pey-Woan, ‘Contract Damages, Corrective Justice and Punishment’ (2007) 70:6 Mod L Rev 887.

Lehmann, Matthias, ‘Liberating the Individual from Battles between States: Justifying Party Autonomy in Conflict of Laws’ (2008) 41 Vand J Transnat’l L 381.

328

Mann, FA, ‘Illegality and the Conflict of Laws’ (1958) 21 Mod L Rev 130.

Mann, Michael, ‘Foreign Penal Laws and the English Conflict of Laws’ (1956) 42 Transactions of the Grotius Society 133.

Mark D Walters, ‘Legality as Reason: Dicey, Rand, and the Rule of Law’ (2010) 55:3 McGill LJ 563.

McConnaughay, Philip J, ‘Reviving the “Public Law Taboo” in International Conflict of Laws’ (1999) 35 Stan J Intl L 255.

Mccorquodale, Robert, ‘Defining the International Rule of Law: Defying Gravity?’ (2016) 65:2 ICLQ 277.

McGoldrick, Dominic, ‘The Boundaries of Justiciability’ (2010) 59:4 ICLQ 981.

McNair, Arnold D, ‘The Effect of War on Contract (Excluding Frustration)’ (1941) 27 Transactions of the Grotius Society 182.

Meidanis, HP, ‘Public Policy and Ordre Public in the Private International Law of the EU: Traditional Positions and Modern Trends’ (2005) 30 European Law Review 95.

Merrills, JG, ‘One Nationality or Two? The Strange Case of Oppenheimer v Cattermole’ (1974) 23:1 ICLQ 143.

Merrills, JG, ‘Oppenheimer v Cattermole – The Curtain Falls’ (1975) 24 ICLQ 617.

Mills, Alex, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4:2 J P Int’l L 201.

Min, Yeo Tiong, ‘Are Loans for International Gambling Against Public Policy?’ (1997) 1 Sing JICL 593.

Minter, Patricia Hagler, ‘“The State of Slavery”: Somerset, The Slave Grace, and the Rise of Pro-Slavery and Anti-Slavery Constitutionalism in the Nineteenth-Century Atlantic World’ (2015) 36:4 Slavery & Abolition 603.

Morris, JHC, ‘The Recognition of Polygamous Marriages in English Law’ (1953) 66 Harv L Rev 961.

Munir, Muhammad, ‘Reforms in triple talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change’ [2013] International Review of Law.

Munir, Muhammad, ‘Triple Talaq in One Session: An Analysis of the Opinions of Classical, Medieval, and Modern Muslim Jurists, under Islamic law’ (2013) 27 Arab L Q 29.

Murphy, John, ‘Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages’ (2002) 49:3 ICLQ 643.

329

Murphy, John, ‘The Recognition of Overseas Marriages and Divorces in the United Kingdom’ (1996) 47 N Ir Legal Q 35.

Murphy, Kent, ‘The Traditional View of Public Policy and Ordre Public in Private International Law’ (1981) 11:3 Ga J Int’l & Comp L 591.

Naqvi, Zainab Batul, ‘A contextualised historical account of changing judicial attitudes to polygamous marriage in the English courts’ (2017) 13:3 International Journal of Law in Context 408.

Nicholson, Matthew, ‘The Political Unconscious of the English Foreign Act of State and Non-Justiciability Doctrine(s)’ (2015) 64 ICLQ 743.

Nolte, Georg, ‘From Dionisio Anzilotti To Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 13:5 EJIL 1083.

Nussbaum, Arthur, ‘Public Policy and the Political Crisis in the Conflict of Laws’ (1940) 49 Yale LJ 1027.

Nygh, PE, ‘The Reasonable Expectations of the Parties as a Guide to the Choice of Law in Contract and Tort’ (1995) 251 Recueil des cours 269.

O’Keefe, Roger, ‘English Public Policy Internationalised – And Conversion Clarified Too’ (2002) 61:3 Cambridge LJ 499.

Owen, Aron, ‘References to the Holocaust in English Law Reports’ (1992-1994) 33 Jewish Historical Studies 239.

Paulsen, Monrad G & Michael I Sovern, ‘“Public Policy” in the Conflict of Laws’ (1956) 56 Col L Rev 969.

Paulus, Andreas L, ‘Jus Cogens in a Time of Hegemony and Fragmentation’ (2005) 74 Nordic Journal of International Law 297.

Peari, Sagi, ‘Can Better Law be Married with Corrective Justice or Evil Laws?’ (2016) 61:3 McGill LJ 511.

Perreau-Saussine, A, ‘British Acts of State in English Courts’ (2007) 78 Brit YB Int’l L 176.

Petsche, Markus, ‘What’s Wrong with Forum Shopping? An Attempt to Identify and Assess the Real Issues of a Controversial Practice’ (2011) 45:4 Intl Lawyer 1005.

Poole, Thomas, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford J Leg Stud 435.

Poole, Thomas, ‘Constitutional Exceptionalism and the Common Law’ (2009) 7:2 International Journal of Constitutional Law 247.

330

Poole, Thomas, ‘Dogmatic Liberalism? TRS Allan and the Common Law Constitution’ (2002) 65 Mod L Rev 463.

Poole, Thomas, ‘Questioning Common Law Constitutionalism’ (2005) 25 Legal Studies 142.

Poulter, Sebastian, ‘Hyde v Hyde – A Reappraisal’ (1976) 25:3 ICLQ 475.

Poulter, Sebastian, ‘The Definition of Marriage in English Law’ (1979) 42:4 Mod L Rev 409.

Probert, Rebecca, ‘Hanging on the telephone: City of Westminster v IC’ (2008) 20 Child and Family Law Quarterly 395.

Radbruch, Gustav, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’ (2006) 26:1 Oxford Journal of Legal Studies 1.

Reeves, William Harvey, ‘Act of State Doctrine and the Rule of Law – A Reply’ (1960) 54:1 AJIL 141.

Richman, William M & David Riley, ‘The First Restatement of Conflict of Laws on the Twenty-Fifth Anniversary of Its Successor: Contemporary Practice in Traditional Courts’ (1997) 56 Md L Rev 1196.

Rigaux, François, ‘Codification of Private International Law: Pros and Cons’ (2000) 60:4 La L Rev 1321.

Ripstein, Arthur, ‘Just War, Regular War, and Perpetual Peace’ (2016) 107:1 Kant-Studien 179.

Riser-Kositsky, Sasha, ‘The Political Intensification of Caste: India Under the Raj’ (2009) 17:1 Penn History Review 31.

Rogerson, Pippa, ‘Kuwait Airways Corp v Iraqi Airways Corp: The Territoriality Principle in Private International Law – Vice or Virtue?’ (2003) 56:1 Curr Legal Probs 265.

Rolin, Henri, ‘Vers un Ordre Public Réelment International’ in Hommage d’une génération de juristes au Professeur Basdevant (Paris: Pedone, 1960).

Roth, Jenny, Lori Chambers, & Dana Walsh, ‘“Your girls that you all love are mine already”: Dracula, Mormonism and New Women’s Degenerate Polygamy’ (2016) 12:2 Law, Culture and the Humanities 353.

Ruda, Jose Maria, ‘The Opinions of Judge Dionisio Anzilotti at the Permanent Court of International Justice’ (1992) 3 EJIL 100.

Rundle, Kristen, ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’ (2009) 59 UTLJ 65.

Schachter, Oscar, ‘In Defense of International Rules on the Use of Force’ (1986) 53:1 U Chicago L Rev 113.

331

Shientag, Bernard L, ‘Lord Mansfield Revisited – A Modern Assessment’ (1941) 10:3 Fordham L Rev 345.

Simma, Bruno, ‘From Bilateralism to Community Interest in International Law’ (1994) Recueil des cours 217.

Stauffe, Ian R & Christian Bourbonnais Hyde, ‘The Sins of the Fathers: Vicarious Liability of Churches’ (1993) 25:3 Ottawa L Rev 561.

Stone, OM, ‘Sowa v. Sowa: Maintenance of Family Dependants’ (1961) 24 Mod L Rev 500).

Symeonides, Symeon C, ‘The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning’ (2015) 5 U Ill L Rev 1847.

Tams, Christian J, ‘All’s Well that Ends Well? Comments on the ILC’s Articles on State Responsibility’ (2002) 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 759.

Thio, Li-ann, ‘English Public Policy, The Act of State Doctrine and Flagrant Violations of Fundamental International Law: Kuwait Airways Corp v Iraqi Airways Co (2002)’ (2003) 18 Conn J Int’l L 585.

Thomas, Katherine Reece, ‘The Changing Status of International Law in English Domestic Law’ (2006) 53:3 Nethl Int’l L Rev 371.

Tribe, Laurence H, ‘Lawrence v Texas: The “Fundamental Right” that Dare Not Speak Its Name’ (2004) 117 Harv L Rev 1893.

Usherwood, Stephen, ‘The Black Must Be Discharged – The Abolitionists’ Debt to Lord Mansfield’ (1981) 31:3 History Today.

Van Cleve, George, ‘“Somerset’s Case” and Its Antecedents in Imperial Perspective’ (2006) 24:3 Law and History Review 601.

von Mehren, Arthur, ‘Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law Methodology’ (1974) 88 Harv L Rev 347.

Wai, Robert, ‘In the Name of the International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International Law’ (2001) 39 Can YB Intl Law 117.

Wai, Robert, ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2002) 40 Colum J Transnat’l L 209.

Wald, Patricia M, ‘Some Observations on the Use of Legislative History in the 1981 Supreme Court Term’ (1983) 68 Iowa L Rev 195.

332

Waldron, Jeremy, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) 22:2 EJIL 315.

Waldron, Jeremy, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale LJ 1346.

Wardle, Lynn D, ‘From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-jurisdictional Recognition of Controversial Domestic Relations’ (2008) [2008] BYUL Rev 1855.

Watt, Horatia Muir, ‘Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness Under the Brussels and Lugano Conventions’ (2001) 36 Texas International Law Journal 539.

Watt, Horatia Muir, ‘Private International Law Beyond the Schism’ (2011) 2:3 Transnational Legal Theory 347.

Watts, Arthur, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law 15.

Webb, PRH, ‘Polygamous Marriages Again’ (1961) 24 Mod L Rev 183.

Webb, PRH, ‘Polygamy and the Eddying Winds’ (1965) 14 ICLQ 273.

Webb, PRH, ‘Sowa v Sowa: Polygamy and the Unchanging Wind’ (1961) 24 Mod L Rev 497.

Webb, PRH, ‘The Continued Erosion of the Hyde Rule’ (1965) 28 Mod L Rev 109.

Weiner, Mark S, ‘New Biographical Evidence on Somerset’s Case’ (2002) 23:1 Slavery and Abolition 121.

William M Wiecek, ‘Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World’ (1974) 42:1 U Chicago L Rev 86

Yongping Xiao & Zhengxin Huo, ‘Ordre Public in China’s Private International Law’ (2005) 53:3 Am J Comp L 653.

Zipursky, Benjamin, ‘The Inner Morality of Private Law’ (2013) Am J Juris 27.

3. Jurisprudence

A. United Kingdom A v L, [2010] EWHC 460 (FamD).

A(FC) and others v Secretary of State for the Home Department (No 2), [2005] UKHL 71.

Adams v Cape Industries Plc, [1990] Ch 433 (CA (Eng)).

Agbaje v Agbaje, [2010] UKSC 13.

333

Al Jedda v Secretary of State for Defence, [2010] EWCA Civ 758.

Ali v Ali, [1968] P 564 (Probate, Divorce & Admiralty Division).

Altimo Holdings and Investment Ltd v Kyrgyz Mobil tel Ltd, [2011] UKPC 7.

AM Luther Co v James Sagor & Co, [1921] 3 KB 532 (CA (Eng)).

Anismimic Ltd v Foreign Compensation Commission, [1969] 2 AC 147.

Arab Bank Ltd v Barclays Bank, [1953] 2 QB 537 (HL (Eng)).

B v I, [2010] 1 FLR 1721.

Baindail (Otherwise Lawson) v Baindail, [1946] P 122 (CA (Eng)).

Banco Nacional de Comercio Exterior SNC v Empresa de Telecomunicaiones de Cuba, [2007] EWHC 2322 (QBD Comm).

Belhaj v Straw [2014] EWCA Civ 1394.

Belhaj v Straw [2017] UKSC 3.

Blathwayt v Baron Cawley, [1976] AC 397 (HL (Eng)).

Boissevain v Weil, [1950] AC 327 (HL (Eng)).

Boys v Chaplin, [1971] AC 356 (HL (Eng)).

Buckland v Buckland (1968), [1967] 2 WLR 1506 (Probate, Divorce & Admiralty Division).

Buron v Denman, (1848) 2 Exch 16.

Buttes Gas and Oil Co v Hammer (No 3), [1982] AC 888 (HL (Eng)).

Chaudhary v Chaudhary, [1985] Fam 19 (CA (Eng)).

Cheni v Cheni, [1965] P 85 (Probate, Divorce & Admiralty Division).

Chetti (Venugopal) v Chetti (Venugopal), [1909] P 67 (Probate, Divorce & Admiralty Division).

Connolly v Wollrich, [1867] QJ No 1.

Din v National Assistance Board, [1967] 2 QB 213.

Duarte v Black & Decker Corporation, [2008] 1 All ER 401(HCJ QBD Comm).

Dynamit Aktien-Gesellschaft v Rio Tinto Co, [1918] AC 260 (HL (Eng)).

334

Empresa Nacional de Telecomunicaciones SA v Deustsche Bank AG, [2010] 1 All ER 649 (HCJ QBD Comm).

Enderby Town Football Club Ltd v Football Association Ltd, [1971] Ch 591.

Foster v Driscoll, [1929] 1 KB 470.

Frankfurther v WL Exner, [1947] Ch 629.

Gray (Orse Formosa) v Formosa, [1962] 3 WLR 1246 (CA (Eng)).

Great America Leasing Corp v Yates (2003), 180 OAC 130 (CA (Eng)).

H v H (1953), [1954] P 258 (Probate, Divorce & Admiralty Division).

Hashmi v Hashmi, [1972] Fam 36.

Hyde v Hyde and Woodmansee (1866), [LR] 1 P & D 130.

Igra v Igra, [1951] P 404 (Probate, Divorce & Admiralty Division).

In re Bonacina, [1912] 2 Ch 394 (CA (Eng)).

In re Fried Krupp Actien-Gesellschaft, [1917] 2 Ch 188.

In re Helbert Wagg, [1956] Ch 323.

In re Meyer, [1971] 2 WLR 401 (Probate, Divorce & Admiralty Division).

In the Estate of Fuld, Decd (No 3) v Attorney General, [1968] P 675 (Probate, Divorce & Admiralty Division).

Indyka v Indyka, [1969] 1 AC 33 (HL (Eng))

Janson v Driefontein Consolidated Mines Ltd, [1901] 2 KB 419 (CA (Eng)).

Johnstone v Peddlar, [1921] 2 AC 262

JSC BTA Bank v Mukhtar Ablyazov and Ors, [2011] EWHC 202 (QBD Comm).

K v A, [2014] EWHC 3850 (FamD).

Kassim (otherwise Widmann) v Kassim (otherwise Hassim), [1962] 3 WLR 865 (Probate, Divorce & Admiralty.

Kaufman v Gerson, [1904] 1 KB 591 (CA (Eng)).

KC v City of Westminister, [2008] EWCA Civ 198.

335

Kendall v Kendall, [1977] 3 WLR 251 (FamD).

Korea National Insurance Corporation v Allianz Global Corporate, [2008] EWHC 2829.

Kuenigl v Donnersmarck, [1955] 1 QB 515.

Kuwait Airways Corporation v Iraqi Airways Company, [2001] 3 WLR 1117 (CA (Eng))

Kuwait Airways Corporation v Iraqi Airways Company, [2002] UKHL 19.

Lee v Lau, [1967] P 14 (Probate, Divorce & Admiralty Division).

Lemenda Trading v African Middle East Petroleum, [1988] QB 448.

Lepre v Lepre, [1963] 2 WLR 735 (Probate, Divorce & Admiralty Division).

Lowe v Peers (1768), 98 ER 160.

Luther v Sagor, [1921] 3 KB 532.

Madrazo v Willes (1820), 106 ER 692.

Mahonia v JP Morgan Chase Bank, [2003] EWHC 1927 (Comm).

McGrath & Ors v Riddell & Ors (Conjoined Appeals), [2008] UKHL 21.

Mehta v Mehta, [1945] 2 All ER 690 (Probate, Divorce & Admiralty Division).

Mohamed v Knott, [1969] 1 QB 1 (Div Ct).

Mohammed and others (Respondents) v Ministry of Defence (Appellant), [2017] UKSC 1 & [2017] UKSC 2.

Moulis v Owen (1907), 76 KB 396.

Nabi v Heaton, [1981] 1 WLR 1052 (Ch).

Novello & Co v Hinrichsen Edition, Ltd, [1951] Ch 1026.

NS v MI, [2006] EWHC 1646 (FamD).

Official Solicitor to the Senior Courts v Yemoh, [2010] EWHC 3727 (Ch).

Ohochuku v Ohockuku, [1960] 1 WLR 183 (Probate, Divorce & Admiralty Division).

Oppenheimer v Cattermole, [1976] AC 249 (HL (Eng)).

Parkasho v Singh, [1968] P 233 (Div Ct).

Peer International Corp v Termidor Music Publishers Ltd (No 1), [2003] EWCA Civ 1156.

336

Pemberton v Hughes, [1899] 1 Ch 781 (CA (Eng)).

Phillips v Eyre (1870), 6 QB 1.

Princess Paley Olga v Weisz, [1929] 1 KB 718.

Quazi v Quazi, [1979] 3 WLR 833 (HL (Eng)).

Qureshi v Qureshi, [1971] 2 WLR 518 (Probate, Divorce & Admiralty Division).

R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs, [2009] EWHC 1910 (Admin).

R v Brentwood Superintendent Registrar of Marriages, Ex parte Arias, [1968] 3 WLR 531 (Div Court).

R v Hammersmith Superintendent Registrar of Marriages [1917] 1 KB 634.

Radwan v Radwan, [1973] Fam 35.

Rahmatullah v The Ministry of Defence, [2014] EWHC 3846 (QBD).

Ralli Brothers v Compañia Naviera Sota Y Aznar, [1920] 2 KB 287.

Re Sinha Peerage Claim, [1946] 1 All ER 348 (Committee for Privileges).

Regazzoni v KC Sethia (1944) Ltd, [1958] AC 301 (HL (Eng)).

Richardson v Mellish, (1824) 2 Bing 229 (Court of Common Pleas).

Risk v Risk, [1951] P 50 (Probate, Divorce & Admiralty Division).

Roussilon v Roussilon, (1880) 14 ChD 351.

Royal Boskalis Westminster NV and Others v Mountain and Others, [1998] 2 WLR 538 (CA (Eng)).

Santos v Illidge, (1860) 141 ER 1404.

Saxby v Fulton, [1909] 2 KB 208.

Shahnaz v Rizwan, [1965] 1 QB 390.

Shergill v Khaira, [2014] 3 WLR 1.

Somerset v Stewart, [1772] Lofft 1 (HL (Eng)).

Sottomayer (otherwise de Barros) v de Barros, [1879] 5 PD 94 (Probate, Divorce & Admiralty Division).

337

Sowa v Sowa, [1961] P 70 (CA (Eng)).

Srini Vasan (Otherwise Clayton) v Srini Vasan, [1946] P 67 (Probate, Divorce & Admiralty Division).

St John Shipping Corp v Joseph Rank, [1957] 1 QB 267.

Starkowski (Otherwise Urbanski) Appellant v Attorney-General and Others Respondent, [1954] AC 155 (HL (Eng)).

Stevenson, Jordan, and Harrison v Macdonald and Evans, [1952] 1 TLR 101.

Szechter v Szechter, [1971] 2 WLR 170 (Probate, Divorce & Admiralty Division).

The Liverpool, Brazil, and River Plate Steam Navigation Co Ltd v Henry Benham and Others, also known as The ‘Halley’, [1868] LR 2 PC 193.

Trendtex Trading Corp v Credit Suisse, [1982] AC 679 (HL (Eng)).

Vita Foods Products Inc v Unus Shipping Co, [1939] AC 277 (PC).

Walker v Baird, [1892] AC 491.

Warner Bros v Nelson, [1937] 1 KB 209.

Wilkinson v Kitzinger, [2006] EWHC 2022.

Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd, [1986] 2 WLR 24 (HL (Eng)).

Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd, [1986] AC 368 (HL (Eng)).

Wolff v Oxholm (1817), 105 ER 1177.

XCC v AA, [2012] EWHC 2183.

Yewens v Noakes (1880), 6 QBD 530 (CA (Eng)).

Yukos Capital v OJSC Rosneft Oil Co, [2012] EWCA Civ 855.

B. Canada 671122 Ontario Ltd v Sagaz Industries Canada Inc, [2001] 2 SCR 983.

Amin v Canada (Minister of Citizenship and Immigration), 2008 FC 168 (TD).

Anderson v Anderson, 2012 ABQB 743.

Archer v Society of the Sacred Heart of Jesus (1905), 9 OLR 474 (CA).

338

Atlantic City Showboat Inc v Smith, [1993] OJ No 1561 (Gen Div).

Azam v Jan, 2013 ABQB 301.

Baig v Canada (Minister of Citizenship and Immigration), [2013] IADD No 658 (Immigration Appeal Division).

Beals v Saldanha, 2003 SCC 72.

Boardwalk Regency Corp v Maalouf, [1992] OJ No 26 (CA).

Boardwalk Regency Corp v Newman (1987), 15 CPC (2d) 102 (Ont Dist Ct);

Bradley v Bradley (1909), 19 OLR 525 (Div Ct).

Branco v American Home Assurance Co, 2015 SKCA 71.

Butt v Canada (Minister of Citizenship and Immigration), [2010] IADD No 516 (Immigration Appeal Division).

Canada (Minister of Employment and Immigration) v Sidhu, [1993] 2 FC 483 (CA).

Choudhary v Canada (Minister of Citizenship and Immigration), [2013] IADD No 502 (Immigration Appeal Division).

Dashtarai v Shahrestani, [2006] OJ No 5367 (Sup Ct).

Delvarani v Delvarani, 2012 BCSC 162.

Desert Place v Zigdon, [1987] BCJ no 1213 (County Court).

Dingwall v Foster, 2014 ABCA 89.

Douez v Facebook, Inc, 2017 SCC 33.

Etler v Kertesz, [1960] OR 672 (CA).

Gehl v Canada (Attorney General), 2017 ONCA 319.

Ghaznavi v Kashif-Ul-Haque, 2011 ONSC 4062.

Gillespie Management Corp v Terrace Properties (1989), 39 BCLR (2d) 337 (CA).

GNLV Corp v Wan (1991), 30 ACWS (3d) 1132 (BCSC).

Halpern v Canada (Attorney General), [2003] OJ No 2268 (CA).

Harris v Cooper, [1871] OJ No 46 (Upper Canada Court of Queen’s Bench).

339

Hashmi v Canada (Minister of Citizenship and Immigration), [2012] IADD No 1415 (Immigration Appeal Division).

Hill v Church of Scientology, [1995] 2 SCR 1130.

Hincks v Gallardo, 2013 ONSC 129.

Hincks v Gallardo, 2014 ONCA 494.

Imperial Life Assurance Co of Canada v Segundo Casteleiro Y Colmenares, [1967] SCR 443.

ITV Games, Inc (Re), 2001 BCSC 1391.

Jafri v Canada (Minister of Citizenship and Immigration), [2009] IADD No 3071 (Immigration Appeal Division).

Jesow v Canada (Minister of Public Safety and Emergency Preparedness), [2010] IADD No 3332 (Immigration Appeal Division).

Kaddoura v Hammoud, [1998] OJ No 5054 (Ct J (Gen Div)).

Kaur v Ginder, [1958] BCJ No 123 (SC).

Khanis v Noormohamed, 2011 ONCA 127.

Kidron v Grean (1996), 48 OR (3d) 775 (Gen Div).

Laane and Baltser v The Estonian State Cargo & Passenger Steamship Line, [1949] SCR 530.

Lambert Re, [2002] OJ No 3163 (CA).

Lebert v Skinner Estate (2001), 53 OR (3d) 559 (SCJ).

Leonard v Houle, [1997] OJ No 4563 (CA).

Lim v Lim, [1948] 2 DLR 353 (BCSC).

Marzara v Marzara, 2011 BCSC 408.

McLean v Pettigrew, [1945] SCR 62.

Metaxas v The Galaxias, [1990] 2 FC 400 (TD).

Nasin v Nasin, 2008 ABQB 219.

Nathoo v Nathoo, [1996] BCJ No 2720.

National Integrity Development Inc v Trower, [2001] OJ No 735 (Sup Ct).

340

National Surety v Larsen, [1929] 4 DLR 918 (BCCA).

Parmar v Canada (Minister of Employment and Immigration), [1991] IADD No 180 (Immigration Appeal Division).

Popal v Canada (Minister of Citizenship and Immigration), [2009] IADD No 2407 (Immigration Appeal Division).

R v Sagoo, [1975] QB 885 (CA).

Re Hassan and Hassan, [1976] OJ No 2131 (H Ct J).

Re Leong Ba Chai, [1953] BCJ No 89 (CA).

Re Quon, [1969] AJ No 70 (SC).

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588.

Sangi v Sangi, 2011 BCSC 523.

Sara v Sara, [1962] BCJ No 106 (SC).

Sarkar v Canada (Minister of Citizenship and Immigration), [2011] IADD No 2461 (Immigration Appeal Division).

Society of Lloyd’s v Meinzer, [2001] OJ No 3403 (CA).

South Pacific Import, Inc v Ho, 2007 BCSC 211.

Tolofson v Jensen, [1994] 3 SCR 1022.

United States of America v Bulley, [1991] BCJ No 806 (CA).

United States of America v Ivey, [1995] OJ No 3579 (Gen Div).

United States of America v The Shield Development Corp, [2004] 74 OR (3d) 583 (SC).

Vladi v Vladi, [1987] NSJ No 204 (SC (TD)).

Wong v Wei [1999] BCJ No 768 (SC).

Wynn Las Vegas, LLC v Li, [2012] MJ No 256 (QB).

Yew v Attorney-General of British Columbia (1923), 33 BCR 109 (CA).

C. USA Dred Scott v Sandford, 60 US 393 (1857).

341

Goodman v Deutsch Atlantische Telegraphen Gesdlschaft, 2 NYS (2d) 80 (Sup Ct 1939).

Loucks v Standard Oil Co of New York, 12 NE 198 (1918).

Loving v Virginia, 388 US 1 (1967).

The Slave Grace, 166 ER 179 (1827).

Underhill v Hernandez, 168 US 250 (1897).

D. Australia Australian Competition and Consumer Commission v PT Garuda Indonestia (No 9), [2013]

FCA 323.

Habib v Commonwealth of Australia, [2010] FCAFC 12.

Hicks v Ruddock, [2007] FCA 299.

E. Permanent Court of International Justice and International Court of Justice Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v

Sweden), ‘Separate Opinion of Judge Sir Hersch Lauterpacht’ (28 November 1958), PCIJ 79.

Case Concerning Barcelona Traction, Light, and Power Company, Ltd, [1970] ICJ Rep 1.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136.

Legal Consequences for States of the Continued Presence of South Africa in Namibia, [1971] ICJ Rep 16.

Nicaragua v United States of America, [1986] ICJ Rep 14.

4. Reports Ontario Law Reform Commission, Report on Exemplary Damages (Toronto: Ontario Law

Reform Commission, 1991).

5. Statutes Civil Marriage Act (UK), SC 2005, c 33.

Civil Partnership Act (UK), 2004, c 33

Divorce Act, RSC 1985, c 3 (2nd Supp), as amended.

Family Law Act, RSO 1990, c F 3.

342

Marriage (Same Sex Couples) Act (UK), 2013, c 30.

Private International Law (Miscellaneous Provisions) Act (UK), 1995.

6. International Treaties, Conventions, Reports, and Statutes

Convention on Choice of Court Agreements, 30 June 2005, 44 ILM 1294 (entered into force 1 October 2015).

Convention on Private International Law (Bustamante Code), 20 February 1928, OASTS 34 (entered into force 25 November 1928).

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959).

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (1950) ETS 5.

ILC Commentary to the Articles on State Responsibility, reprinted in ‘Report of the International Law Commission of the 53rd Session’, UN Doc A/56/10.

Responsibility of States for Internationally Wrongful Acts, annexed to UN Doc A/RES/56/83 of 12 December 2001.

United Nations, Statute of the International Court of Justice, 18 April 1946.

Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331.

7. Unpublished Manuscripts and Electronic Resources

Angela Campbell et al, ‘Polygamy in Canada: Social implications for women and children,’ Status of Women’s Office (2005), online: < http://publications.gc.ca/collections/Collection/SW21-132-2005E.pdf>.

Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’ (2012) Institute for International Law and Justice Working Paper No 2.

Anti-Slavery, ‘Slavery in the UK,’ online: Anti-Slavery <https://www.antislavery.org/slavery-today/slavery-uk/>.

Coalition for Marriage, ‘Consultation Response’ (June 2012), online: <http://c4m.org.uk/downloads/consultationresponse.pdf>.

David Dyzenhaus, ‘Monism and Dualism’ (on file with author).

Heather M Whitney, ‘The Autonomy Defense of Private Discrimination’ (SSRN draft).

343

Leslie Green, ‘The Germ of Justice’ (2010) University of Oxford Legal Research Paper Series No 60/2010.

Malcolm Turnbull, ‘Reflections on Gay Marriage - Michael Kirby Lecture 2012’ (7 July 2012), online: < https://www.malcolmturnbull.com.au/media/reflections-on-gay-marriage-michael-kirby-lecture-2012>.

The Economist, ‘Still Untouchable,’ The Economist (14 June 2011), online: <https://www.economist.com/node/656502>.

UNICEF, ‘Child marriage is a violation of human rights, but it is all too common’ (May 2015), UNICEF.org, online: <http://data.unicef.org/child-protection/child-marriage.html>.