Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter S.12: Story, Joseph

Ralf Michaels

Joseph Story (1779–1845) was one of the greatest and most influential American lawyers of all time. Both as a Supreme Court Justice and as a professor at Harvard Law School, his work and thought were, and still are, of great importance. Today’s private international law would look different without him, both in the →USA and in the rest of the world. At the same time, his approach to the field cannot be properly understood unless placed within his broader work on law, and the specific American background against which it was developed.

I. Life and work

1. Life, positions

Joseph Story was born in 1779, the same year as Carl Friedrich von Savigny (1779–1861) (→Savigny, Friedrich Carl von), in Marblehead, Massachusetts, then with about 5,000 inhabitants the eighth biggest city in the young USA. Both the importance of commerce and the international connections of New England influenced him throughout his life. He went to study at Harvard College where he graduated second in his class. At the time, law was taught at almost no US universities, so he read law with a practising attorney at Marblehead with great ambition, studying 14 hours a day. In 1801 he was admitted to the Bar in Salem and practised, successfully, as a lawyer in Essex County. As one of few Jeffersonian Republican lawyers in Massachusetts, he was an outsider, but his politics helped him gain the support of the influential Crowninshield family. Like many lawyers of his time he went into politics and was elected to the Massachusetts House of Representatives in 1805; in 1811 he became its speaker. His greatest pride from this position was to have originated a law that doubled the salary of judges at the Supreme Judicial Court. From December 1808 to March 1809 he served, briefly, as a representative in the US Congress to replace Jacob Crowninshield (1770–1808); in this brief time he managed to win President Thomas Jefferson’s (1743–1826) enmity over the President’s repeal of an embargo against the British.

Despite Jefferson’s reservations, President James Madison (1751–1836), in need of a Republican from Massachusetts, appointed Story, in November 1811, to the US Supreme Court – at age 32 the youngest US Supreme Court Justice ever. He remained on the Court until his death in 1845. His first years on the Court were his happiest; he got along especially well with Chief Justice John Marshall (1755–1835). When Marshall died in 1832, President p. 1660Andrew Jackson (1767–1845) chose Roger Brooke Taney (1777–1864) as Chief Justice over Story, whom he considered ‘the most dangerous man in America’, perhaps because of Story’s demonstrated independence from partisanship. Though Story worked well with Taney, he became less happy with his other colleagues and with the increasingly political role of the Court, and considered retiring. Indeed, work as a Supreme Court Justice was strenuous. Washington, DC, where the judges were active for six to twelve weeks each year without their families, was a most uninspiring place. In addition, Supreme Court Justices spent much time each year riding the circuits (for Story this meant Rhode Island, Massachusetts, Maine and New Hampshire) and serving as federal appeals court judges. Story was proud of his work as a Circuit Justice and went on to publish his own opinions.

While remaining on the bench, Story took up, in 1829, a position as Dane professor at the Harvard Law School. The school, founded in 1817 (making it the oldest continuing university law school in the country), was fledgling; when Story joined in 1824, it had a mere 12 students. Story, in addition to his ongoing judicial work, turned out to be a prolific writer, a successful and enthusiastic teacher of law and a harbinger of educational reform at Harvard. All of this paid off: during Story’s time, the law school began to prosper; when he died, enrolment was up to 154 students. Story’s aim, to turn Harvard into a national law school (and thereby enhance a national, as opposed to state-based, legal education) was a successful strategy, until our time.

The strains of this life took their toll on Story. In 1845, he announced his plans to retire, but died before he could put this plan into practice.

2. Contributions in general

Story’s influence on American law is so great because he worked in two areas–scholarship and judicial works–and both activities for him were mutually influential. On the one hand, Story wanted to establish American law as a science in which judges discovered principles through reason (insofar not unlike European jurists, though he criticized the Europeans’ overly abstract and theoretical style). On the other hand, Story’s scholarly work aimed at providing comprehensive treatment of individual legal areas on the basis of existing American case-law.

a) Judicial opinions

As a Supreme Court Justice, Story wrote no less than 286 opinions, many of them influential (see H Jefferson Powell, ‘Joseph Story’ in Melvin I Urofsky (ed), The Supreme Court Justices: A Biographical Dictionary (Routledge 2006) 435). The decisions span a wide variety of fields, though a certain emphasis is on areas of commercial law, representing the expertise for which he had been appointed.

In general, Story’s jurisprudence can be described by three elements. First, it was scholarly. Story took pride in working precisely and on the basis of existing case-law, even where the outcome went against his own personal preferences or those of the politics of the moment; in this, he considered himself ‘the last of the old race of judges’. At the same time, this meant that his opinions were usually meticulously researched. Story’s erudition in the law provided him with a particularly scholarly approach to lawyering that contrasted with the sometimes more aphoristic style of his colleagues.

Second, Story was a nationalist, meaning that as between the states and the federation he would often prioritize the latter. In one of his most influential decisions in this regard, Martin v Hunter’s Lessee (1 Wheaton 304 (1816)), he emphasized that federal power came from the people and not from the states. As a consequence, the Supreme Court could review state court decisions concerning federal law. Elsewhere, he extended federal jurisdiction, for example in admiralty (De Lovio v Boit, 2 Gall. 398 (1815)).

Third, and relatedly, Story favoured the protection of private rights and the growth of private commerce unencumbered by politics. To this goal, he emphasized the constitutional protection of private corporations against interferences from the states (Dartmouth College v Woodward, 4 Wheaton 518 (1819)) and the protection of rights granted by the states against changing political preferences (Charles River Bridge v Warren Bridge Co, 11 Peters 420 (1837), Story J dissenting). In his view, the states with their sometimes peculiar and parochial approaches to legal questions could stand in the way of both private rights and general freedom of commerce; national (or, where possible, even global) solutions were better equipped for the trans-border character of commerce.

b) Scholarship

Story’s other great influence came as a scholar, especially while at Harvard. Nathan Dane p. 1661(1752–1835), the founder of Story’s chair, had stipulated that the donated money be used, in part, for the writing of comprehensive books on topics of American law. Story fulfilled this wish dutifully and with enthusiasm and wrote treatises in a wide variety of fields, all with several editions. These include treatises on bailments (Hilliard and Brown 1832; 9th edn, Little, Brown & Co 1888), the US Constitution (3 vols, Hilliard, Gray & Co 1833; 5th edn, Little, Brown & Co 1905), conflict of laws (Hilliard, Gray & Co 1834; 8th edn, Little, Brown & Co 1883), equity jurisprudence (2 vols, Hilliard, Gray & Co 1836; 14th edn, Little, Brown & Co 1918), equity pleadings (Little, Brown & Co 1838; 10th edn, Little, Brown & Co 1892), agency (Little, Brown & Co 1839; 9th edn, Little, Brown & Co 1882), partnership (Little, Brown & Co 1841; 7th edn, Little, Brown & Co 1881), bills of exchange (Little, Brown & Co 1843; 4th edn, Little, Brown & Co 1860) and promissory notes (Little, Brown & Co 1845; 7th edn, Little, Brown & Co 1878). He had planned additional books on shipping, insurance, equity practice, admiralty and public international law, when he died in 1845. The treatise on the Constitution has remained a standard work; it is still cited frequently. Remarkably, all other treatises (with the exception of conflict of laws) concerned areas of federal common law (which had a much broader scope then than today) and thus had no need to deal with different state laws. In content they were often based on the law of the New England states, which was, however, stripped of its local character and thereby nationalized.

Story was not the sole originator of the treatise as a type of literature on US law. James Kent (1743–1847) (whom Story admired and to whom he dedicated his treatise on the conflict of laws) had begun to write commentaries before. Nathan Dane himself had made the money that funded Story’s chair at Harvard through the success of his ‘General Abridgement and Digest of American Law’, much like Charles Viner (1678–1756) had funded Blackstone’s chair at Oxford with money made from the publication of a similar work. Story’s work, however, was more comprehensive than Kent’s four volumes, and more systematic than Dane’s Abridgement. Although Story frequently criticized civilian writers for their abstract reasoning (and himself indeed relied mostly on existing case-law), he shared with the continental treatise literature the attention to system and the desire to demonstrate underlying principles. In this, Story’s approach was more systematic than original: his treatises display knowledge and order more than new thoughts. At the same time, they served as something akin to civil codes, albeit (of course) non-legislative ones. Indeed, Story was an avid supporter of codification of the common law and presented, in 1837, a report on such a project for the governor of Massachusetts. The project did not come to fruition after he declared himself unable to serve as drafter. All in all, Story’s treatises created a significant boost towards a more comprehensive understanding of US law and introduced what has later been called, in the →USA, classical legal thought.

II. Contributions to private international law

Story made important contributions to many areas, but at least globally, his influence rests primarily on his treatise on the conflict of laws. As in other areas, Story’s work in private international law consisted also on judicial opinions, and both jurisprudence and scholarship mutually influenced each other.

1. Story’s commentaries on the conflict of laws

a) Precursors

In his inaugural lecture at Harvard, Story announced that he planned a work on the conflict of laws in which he would ‘venture far more than has been usual with publicists’. When he began work, he expected it to be his ‘best Law work’. Indeed, at the time, the field as an intellectual discipline lay dormant, especially in the English language. As concerns England, this was understandable: although English courts had had to deal with issues of private international law repeatedly, the procedural nature of the common law at the time had prevented the development of a coherent doctrinal framework. In the United States, by contrast, relations between the states had led to a fast-growing case-law that called for treatment. Nonetheless, Story could draw on very little scholarly material. James Kent had dealt with the conflict of laws in his commentaries. Story himself had written a brief treatment for a Digest of American Law (Kurt Nadelmann (ed), ‘Extract from Joseph Story’s Manuscript “Digest of Law”’ (1961) 5 Am. J. Legal Hist. p. 1662265–75); he had also treated the subject briefly in some of his other earlier treatises. Beyond this, the only relevant American treatment of the field was a treatise by Samuel Livermore (1732–1803), a Louisiana lawyer, written in response to a case in which Livermore’s defence of the theory of statutes, drawing extensively on civilian literature, had not prevailed (see Rodolfo de Nova, ‘The First American Book on Conflict of Laws’ (1964) 8 Am. J. Legal Hist. 136–56).

Livermore had donated his library to Harvard Law School and thereby provided Story with ample scholarly material for his treatise. Story made good use of the material – he read Latin, French and Spanish though not German – and even introduced the most important works in the beginning of his treatise. But he found that the civilian writings ‘abound with theoretical distinctions, which serve little other purpose than to provoke idle discussions, and with metaphysical subtleties, which perplex, if they do not confound, the inquirer’ (Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights and Remedies, and Especially in Regard to Marriages, Wills, Successions, and Judgments (1st edn, 1834) § 11, p 10, henceforth Story, Commentaries on the Conflict of Laws (1st edn, 1834)). Instead, he drew primarily, or at least in significant addition, on English and American case-law, of which, at the time of his writing, there was a lot. To some extent he also used judicial opinions from other jurisdictions. The book was, therefore, very comparative in nature, but at the same time remained explicitly Anglo-American in its focus: Story aimed at demonstrating the approach of the USA to the conflict of laws, not a general theory or an assumed universal law of conflicts.

b) The role of comity

Despite Story’s opposition to abstract theorizing, the treatise does contain a theoretical part in its chapter 2 (‘general maxims’). Here, Story adopted three maxims that he borrowed from Ulricus Huber (1636–94; →Huber, Ulrik):

  1. every nation possesses an exclusive sovereignty and jurisdiction within its own territory (Story, Commentaries on the Conflict of Laws (1st edn, 1834) § 18, p 19);

  2. no state or nation can, by its laws, directly affect, or bind property out of its own territory, or persons not resident therein, whether they are natural born subjects or others (Story, Commentaries on the Conflict of Laws (1st edn, 1834) § 20, p 21);

  3. whatever force and obligations the laws of one country have in another depends solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent (Story, Commentaries on the Conflict of Laws (1st edn, 1834) § 23, p 24).

This meant that questions of conflict of laws had to be resolved not by determining whether a statute was real or personal (as had been done under the theory of statutes), but instead, first and foremost, on the basis of a country’s written or customary law. Only where these two were silent, the decision had to be made on the basis of general considerations of mutual interest and utility and a moral necessity to do justice (mainly by recognizing rights) (Story, Commentaries on the Conflict of Laws (1st edn, 1834) p 34).

States thus had no duty to apply foreign law; they did so out of →comity. This theoretical approach, though it is discussed frequently, was in reality neither new nor particularly relevant. It was not new because Huber’s laying out of these principles had, as Story himself pointed out, been widely accepted in the USA; a reporter had even appended a translation of Huber’s treatise to one of the US Supreme Court’s early decisions. It has been suggested that Story misunderstood Huber, for whom comity was a binding obligation (Alan Watson, Joseph Story and the Comity of Errors (University of Georgia Press 1992)). Whether this was so matters little because an understanding of comity as nonbinding was widespread at Story’s time. It was also in accordance with both the federalism of the USA and Story’s interest, shared by others, in restraining the (extraterritorial) powers of the states (see G Blaine Baker, ‘Interstate Choice of Law and Early American Constitutional Nationalism’ (1993) 38 McGill L.J. 454).

The theoretical approach was not particularly relevant for three reasons. First, what Story had in mind was ‘not the comity of courts, but the comity of the nation’, meaning that judges had no discretion in determining whether or not to apply foreign law. The doctrine thus served as an explanation of what states do, but not p. 1663as an empowerment for judges to rule as they pleased. Second, comity was very vague; Story pointed out that, ‘from its generality, it leaves behind many grave questions as to its application’. The importance of the work lay not in this general basis but in the rules that Story developed. Third, comity functioned, in Story’s treatise, less as a basis of developing doctrines and more as a check on general conflict-of-laws rules, akin to what would later become the →public policy exception. Comity was the small public law element in a treatise otherwise dedicated to private law in its international and interstate dimension. It is rarely taken up in the later parts of the treatise.

One could think that Story’s idea of comity, giving states freedom to refuse to apply foreign law, should stand in the way of his preference for national rules over state rules and for uniformity. That would be a misunderstanding. Comity was indeed a way to weaken the power of individual states, because it prevented states from imposing their laws on other states. And it did not stand in the way of uniformity, because it enhanced the legitimacy of application of foreign law: although conflicts rules were quasi-universal, their adoption rested on the decision of each state.

c) Content of the treatise

Story’s general maxims play no great role for the rest of his treatise. What sets the treatise apart from earlier literature is not its theory but Story’s comprehensive treatment of all areas of the law. Apart from the first two chapters, dealing with, respectively, introductory remarks and general maxims, Story groups the remaining 15 chapters into eight areas (Story, Commentaries on the Conflict of Laws (1st edn, 1834) § 39, p 39): persons, including marriage and divorce (chs 3–7), contracts generally (ch 8), personal and real property (chs 9–10), wills and →succession (chs 11–12), persons acting for others (‘in autre droit’) (ch 13), remedies and judicial sentences (including jurisdiction and foreign judgments) (chs 14–15), penal laws and offences (ch 16) and evidence and proofs (ch 17). Notably absent is tort law Structuring analysis around areas of the law rather than types of statutes (real, personal, mixed) was a novelty. It was very much in accordance with viewing private international law as dealing not with conflicts between sovereigns nor with the characterization of statutes (real and personal) and more with the application of private laws across space – an approach later emulated by Savigny (→Savigny, Friedrich Carl von). At the same time, it reflected the general shift in common law doctrine away from individual causes of action and towards subject matter substantive doctrine.

All in all, Story’s treatise displays a number of characteristics. First, Story conceived of conflicts of laws as more than just conflicts of statutes; by including conflicts between different local common laws he significantly enhanced the scope and importance of the field, especially for the common law. Second, he endorsed a strong territorialism over the (partial) personalism that had characterized the theory of statutes (→Unilateralism). →Connecting factors were almost always territorial – the place of the tort, the place of the contract, the place of the →marriage and so forth. Indeed, in his earlier digest and in his Harvard inaugural lecture, Story had described the scope of conflict of laws as the conflicts between →lex fori and lex loci, not mentioning personal statutes at all. Third, he emphasized the importance of private rights (especially contract and property): those take up the largest part of the treatise, and he was the first to call the discipline ‘private international law’. Both the application of foreign law and the enforcement of foreign judgments served, first and foremost, private interests and the protection of private rights – they were not, as they had been for earlier theorists, matters of respective recognition of sovereign acts. Fourth, despite his emphasis on →comity and the discretion of states in applying foreign law, Story strove very much towards nationally uniform choice-of-law rules (as a second best to substantive law unification). Fifth, Story did not distinguish between interstate and international conflicts, thus placing his approach to conflict of laws in a global framework, in accordance with the foreign literature which he cited.

2. Story’s judicial decisions

Story’s importance for the conflict of laws is not confined to his scholarship. As a circuit judge he rendered 11 decisions on interstate conflicts, showing his interest in the subject area in an almost treatise-like decision on the law applicable to contracts in 1820 (Le Roy v Crowninshield, 2 Mason 151). On the Supreme Court, the very first decision assigned to him concerned a conflict of laws (U.S. v Crosby, 11. U.S. (7 Cranch) 115 (1812)). He went on to author six more and p. 1664participated in 23 more decisions. His two most important Supreme Court decisions for the discipline, both rendered in 1842, were not technically private international law decisions. Despite this, and although both were later overruled, they maintain crucial relevance for the field and are therefore here discussed individually.

a) Federal common law: Swift v Tyson

Story’s most important decision, Swift v Tyson (41 U.S. 1 (1842)), claimed the existence of a general common law that trumped state common laws. At stake was a →bill of exchange that was valid under accepted general principles of commercial law but invalid according to New York case-law. Under the Judiciary Act, federal courts had to apply ‘the laws of the several states’ in common law cases. Story limited the term ‘laws’ to state statutes and rights and titles of a permanent locality, leaving out the common law, in particular contracts. In cases presenting common law questions, federal courts therefore had to decide not on the basis of local case-law but instead on the basis of general legal reasoning. The consequence would be a ‘general commercial law’ that would not be merely national but actually global, ‘not the law of a single country only, but of the commercial world’ (Swift v Tyson (41 U.S. 1 (1842) at 19)).

Swift v Tyson thus demonstrated both Story’s nationalism (as opposed to the individual states) and his protection of commercial freedom from state interference, discussed above. The opinion could be viewed as expressing a preference of uniform law (like →lex mercatoria or →ius gentium) as an alternative to conflict of laws, but that would be an exaggeration. In reality, Story was very aware that different states had different common laws. The decision resolved, first and foremost, a conflict between parochial state laws on the one hand and trans-border commercial law, in favour of the latter, at least for federal courts. At the same time, however, it did posit the existence of some universal background law against which local laws are made, in this sense not unlike the European ius commune. Although later overruled (Erie Railroad v Tompkins, 304 U.S. 64 (1938)), the decision thus remains important.

b) Slavery: Prigg v Pennsylvania

Story’s other important private international law decision concerned slavery, one of the most important conflict-of-laws issues in the antebellum Republic. Slaves who crossed the border from Southern states (where slavery was legal) to Northern states (where it had been abolished) created complex status questions – could they gain, and then keep, their freedom? Did they lose their status as property? The Constitution provided that slaves who escaped into another state were not thereby free from service but had to be returned (U.S. Const art IV sec 2 cl 3). The federal Fugitive Slave Act of 1793 (An Act respecting fugitives from justice, and persons escaping from the service of their masters, Annals of Congress, 2nd Congress, 2nd Session (November 5, 1792 to March 2, 1793), pp 1414–15, available at <www.ushistory.org/presidentshouse/history/slaveact1793.htm>)provided for enforceability of the clause.

In Prigg v Pennsylvania (41 U.S. 539 (1842)), a slave catcher had caught fugitive slaves in Pennsylvania (which had abolished slavery and even had a law declaring most slaves free once on Pennsylvania territory). Story held in his favour. Under his →comity approach, Story could have declared Pennsylvania free to ignore, within its territory, the slavery laws of other states: ‘[under] the general law of nations, no nation is bound to recognize the state of slavery’, so ‘[t]‌he state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws’ (41 U.S. 611). The fugitive slave clause in the Constitution, however, changed the matter as positive law:

the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law or regulation whatsoever, because there is no qualification or restriction of it to be found therein . . . the owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him as property. (41 U.S. 612)

Because this was a consequence of federal law, it was up to the federal government to enforce rendition.

Story has been much criticized for his decision, both in his time and today. Abolitionists thought Story, who earlier had considered slavery ‘repugnant to the general principles of justice and humanity’ (U.S. v La Jeune Eugenie, 26 F.Cas. 832 (1822)) should have limited slavery. One explanation of the decision is that Story’s nationalism and interest in maintaining the Union won over his opposition to slavery. Another is that he hoped, by vesting enforcement of the fugitive slave clause p. 1665in the federal government, he could effectively enable its limitation. Both, however, are political analyses of what was first and foremost the application of the law: Story read the fugitive slave clause as an implicit federal conflict-of-laws rule that he, as a judge, had to apply. Decisions over slavery were left to the process of amending the Constitution – which is what happened with the abolition of slavery after the Civil War.

III. Story’s influence

1. At the time

The immediate influence of Story’s treatise influence was tremendous. In the →USA, it instantly became the standard reference for courts and scholars dealing with private international law, and remained so for a long time. The Supreme Court (in a decision not authored by Story) explicitly adopted his comity-based approach (Bank of Augusta v Earle, 28 U.S. 519 (1839)). Not surprisingly, therefore, Story soon had occasion for a second edition (1841) that was not only enlarged (it almost doubled in size) but also contained a number of significant changes. It enabled him to account not just for growing case-law but also for the emerging new European scholarship (much of which was inspired by his treatise) (Kurt Nadelmann, ‘Bicentennial Observations on the Second Edition of Joseph Story’s Commentaries on the Conflict of Laws’ (1980) 28 Am.J.Comp.L. 67–77). In the foreword to the second edition, Story announced that he would not have much more to say on the topic; a third edition from 1846 was thus mostly a reprint of the second, containing Story’s latest edits. Five more editions were published until the eighth edition in 1883. Indeed, the importance of the work can be viewed from the fact that no other similarly comprehensive treatise was published in the USA for more than a hundred years, and when one finally was published – Joseph H Beale’s (1861–1943) treatise – it was dedicated to Story, in memory of the centenary of Story’s first edition. Around the same time, Ernest G Lorenzen (1876–1952) could demonstrate how many of the rules set up by Story had survived (Ernest Lorenzen, ‘Story’s Commentaries on the Conflict of Laws: One Hundred Years After’ (1934) 48 Harv.L.Rev. 15, 20–26).

Story’s influence was not confined to the USA. His treatise became the first American scholarly treatise to be cited by English courts, and it was indeed cited frequently. In England, unlike in the USA, it spurred a number of treatises on the subject, which, however, were not able to surpass it in importance for a long time. The Commentaries also wielded considerable influence on the law in Canada.

This influence in common law countries may seem less remarkable than the fact that Story’s treatise was immediately influential in Europe. The German immigrant Francis Lieber (1800–1872) sent a copy of Story’s Commentaries to Carl Joseph Anton Mittermaier (1787–1867) in Germany, who promptly reviewed the book extensively in his journal. Mittermaier announced to Story that a young lawyer from Heidelberg was preparing a translation into German. That translation, though announced by the publisher, never materialized, presumably due to the translator’s death. Story’s treatise spurred the first treatises in Germany: both Wilhelm Schaeffner (1815–97) and Savigny (→Savigny, Friedrich Carl von) admitted Story’s great influence on their own treatises. (For Wächter (→Wächter, Carl Georg von), by contrast, with his own positivist and noncomparative approach, Story’s work was not relevant.) Savigny himself provided, however, a different concept of →comity from Story’s, and indeed, the many treatises in the field that were published in 19th-century Germany took, doctrinally, a different direction.

In France, Jean-Jacques Gaspard Foelix (1791–1853) demonstrated the great impression that Story’s treatise had left on him not just in a letter to Story and a review of his work in his journal ((1834) 1 Revue étrangère 758; cf 13 Am. Jurist & L. Mag. 237 (1835)), but also in his own treatise (Jean-Jacques Gaspard Foelix, Traité du droit international privé, vol 1 (Joubert 1843)). The influence shows already in the title, in the basis of private international in the idea of comity, and in several specific doctrines – even though Foelix remained in the structure of different kinds of statutes. Less influence seems to exist on Italy. A translation of the second edition of Story’s treatise exists in manuscript but has never, it appears, been published (Kurt Nadelmann, ‘Bicentennial Observations on the Second Edition of Joseph Story’s Commentaries on the Conflict of Laws’ (1980) 28 Am.J.Comp.L. 67, 74). Pasquale Stanislao Mancini (1817–88) (→Mancini, Pasquale Stanislao), the foundational Italian scholar of private international law, was aware of Story’s work but objected to his theory of comity.

p. 1666Story’s greatest influence outside the USA existed in Latin America, and it is only here that translations of his treatise were published (see Haroldo Valladão, ‘The Influence of Joseph Story on Latin-American Rules of Conflict of Laws’ (1954) 3 Am.J.Comp.L. 27). In 1880, Hilario S Gabilondo (ca 1849–93) published a Spanish translation in →Mexico (see Kurt Nadelmann, ‘Una traducciòn Mexicana de los Comentarios sobre los Conflictos de Leyes de Joseph Story’ (1983) 15 Jurídica – Anuario del Departamento de Derecho de la Universidad Iberoamericana 221 with republication of the translators’ foreword and chapter 2). A more important translation of the eighth edition was made in 1891 in Argentina by Clodomiro Quiroga (1838–99). Even earlier, Story’s treatise had left clear traces in the provisions on private international law of the Argentinian civil code of 1869 (see the synopsis in Haroldo Valladão, ‘The Influence of Joseph Story on Latin-American Rules of Conflict of Laws’ (1954) 3 Am.J.Comp.L. 27, 34–8) and thereby, indirectly, on private international law in Paraguay, which adopted the code in 1889. Several private international law conventions also demonstrate such influence.

2. In the long run

In the long run, Story’s influence is great though, in many ways, indirect. In the →USA, the so-called →(American) Conflict of laws revolution destroyed not just the formalism of the →vested rights theory but also the classicism of Joseph Story. At the same time, contemporary conflict of laws in the USA still shows its roots in Story’s theories, even though they have altered those considerably. Many specific doctrines in US law – at least outside of contract and tort law, the main foci of the American conflict of laws revolution – remain, largely, unchanged. More importantly, perhaps, four of Story’s foundations remain dominant in US conflicts thinking. First, the idea that laws are, first and foremost, territorial, and that therefore the most important →connecting factors must be territorial as well, is still stronger in the USA than in many other jurisdictions (→Territoriality). Second, →comity still plays a greater role in the USA than in other legal systems – a greater role in fact than it did for Story. Comity has emerged as a broad basis of conflicts decisions: that the application of foreign law is a matter not of obligation is a perspective that permeates US thinking in conflict of laws (→Foreign law, application and ascertainment). Third (and relatedly), modern interest and policy analysis adopts an idea that Story already emphasized at various places, namely that the conflict of laws is about policies and interests and that no nation is obliged to yield its own policies and interests to those of other states. The difference is that Story aimed at limiting the reach of such policies, whereas modern →choice of law enforces them. Fourth, for contemporary conflict of laws in the USA, like for Story, interstate and international conflicts are treated similarly, and the model is the latter. All in all, despite all changes and evolutions and revolutions, there is still remarkable continuity between Story and modern conflict of laws.

This has been somewhat less so in the rest of the world, which is not surprising, given that Story wrote against the background of the US federal system. Although Story initiated the emergence of the field, the field moved on beyond him. Outside the USA, Story’s most lasting contribution was, somewhat ironically, the name of the discipline – private international law. Story introduced the name almost in passing (Story, Commentaries on the Conflict of Laws (1st edn, 1834) § 9, p 9) whereupon it was adopted in Germany via Schaeffner and Savigny (→Savigny, Friedrich Carl von) and in France via Foelix, while the common law stuck with the original name conflict of laws. Beyond the name, Story introduced the specifically private conception of private international law that has come to dominate the field outside the USA. Methodologically, his decision to structure the field alongside areas of the law rather than types of statutes was an early precursor of the modern idea of specialized conflict-of-laws rules.

Literature

  • G Blaine Baker, ‘Interstate Choice of Law and Early-American Constitutional Nationalism. An Essay on Joseph Story and the Comity of Errors: A Case Study in Conflict of Laws’ (1993) 38 McGill L.J. 454;

  • Gerhard Kegel, ‘Joseph Story’ (1979) 43 RabelsZ 609;

  • Gerhard Kegel, ‘Wohnsitz und Belegenheit bei Story und Savigny’ (1988) 52 RabelsZ 431;

  • Gerhard Kegel, ‘Story and Savigny’ (1989) 37 Am.J.Comp.L. 39, p. 1667translated as ‘Story und Savigny’ in Festschrift der Rechtswissenschaftlichen Fakultät zur 600-Jahr-Feier der Universität zu Köln (Heymanns 1988) 65;

  • Édouard Lambert and JR Xirau, L’ancêtre américain du droit comparé, la doctrine du juge Story (Librairie du Recueil Sirey 1947);

  • Ernest G Lorenzen, ‘Story’s Commentaries on the Conflict of Laws: One Hundred Years After’ (1934) 48 Harv.L.Rev. 15 (French translation as ‘A propos du centenaire des Commentaires de Story sur les conflits de lois’ [1935] Rev.crit.DIP 295); Kurt Nadelmann (ed), ‘Extract from Joseph Story’s Manuscript “Digest of Law”’ (1961) 5 Am. J. Legal Hist. 265;

  • Kurt H Nadelmann, ‘Joseph Story’s Contribution to American Conflicts Law: A Comment’ (1961) 5 Am. J. Legal Hist. 230;

  • Kurt H Nadelmann, ‘Bicentennial Observations on the Second Edition of Joseph Story’s Commentaries on the Conflict of Laws’ (1980) 28 Am.J.Comp.L. 66 (French translation as ‘Observations sur la seconde edition des Commentaries on the Conflict of Laws de Joseph Story à l’occasion de son bicentennaire’ [1981] Rev.crit.DIP 1;

  • R Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the New Republic (University of North Carolina Press 1986); Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights and Remedies, and Especially in Regard to Marriages, Wills, Successions, and Judgments (1st edn, 1834; 8th edn, Bigelow 1883);

  • William W Story (ed), Life and Letters of Joseph Story (2 vols, John Chapman 1851);

  • Haroldo Valladão, ‘The Influence of Joseph Story on Latin-American Rules of Conflict of Laws’ (1954) 3 Am.J.Comp.L. 27;

  • Alan Watson, Joseph Story and the Comity of Errors (University of Georgia Press 1992);

  • Konrad Zweigert, ‘Die Gestalt Joseph Story’s’ (1949) 105 Zeitschrift für die gesamte Staatswissenschaft 590.