Private citizens of the world: exploring the "choice of law" doctrine

A lawyer and a scholar of international law and legal theory whose interests include international trade law, private international law, and foreign affairs law, Joanna Langille is pursuing a doctorate at the University of Toronto’s Faculty of Law as a SSHRC Bombardier Scholar. 

Now, Langille is also one of eight members of the U of T community receiving a prestigious Pierre Elliott Trudeau Foundation scholarship this year. (Read about the four students and four alumni named Trudeau scholars in 2014.) 

Tell us about your research project and its central idea.
My doctoral research examines the legal doctrine of a field called “private international law” from the perspective of legal and political theory. Private international law is the field of law that regulates transborder private law, such as torts, contractual and property disputes, and family law matters that are related to multiple jurisdictions. While this field has long been studied as a doctrinal matter, it is relatively under-examined from the perspective of legal and political theory.

I am particularly interested in what is called “choice of law” doctrine, in which a court confronted by a private law dispute that is related to multiple jurisdictions will ask which country’s law should apply – and often the court will actually apply foreign law to resolve the dispute! From a political theory perspective, I find this fascinating, because it raises deep theoretical questions about why a court can use foreign law in the private law context. Why isn’t the court bound to apply its own law, as it is in the public law context – in criminal and constitutional law, for example? And what could possibly require a court to apply foreign law? Doesn’t this undermine democratic theory or the notion of a social contract?

My dissertation seeks to answer these questions by examining the prior theoretical literature and by introducing a novel Kantian account to explain and justify this practice.

What led you to choose this research project in particular?
I became interested in this project because of my background in both legal and political theory and international economic law. My undergraduate degree in philosophy is from the University of Toronto, where I had the privilege of studying with world-renowned legal theorists Arthur Ripstein and David Dyzenhaus. I went on to study international law and politics at Oxford and NYU School of Law, but the scholarly approach I learned from Professors Ripstein and Dyzenhaus made me want to continue to ask theoretical questions about the structure of international law. As such, I have continually sought to take a philosophical approach to analyzing areas such as international trade law and private international law. And I chose to do my doctoral work at the University of Toronto so I could study with Professors Ripstein and Dyzenhaus once again.

I also became interested in this topic because it poses fundamental questions about the nature of political authority, and yet there is a real dearth of theoretical analysis of private international law doctrine. I think that private international law doctrine poses a fundamental challenge to the way we normally think about state authority, borders, and the treatment of foreign nationals, and since it is so understudied, there is an opportunity to make a significant contribution to the way this field is understood.

What is new or surprising about your research?
What is most surprising to me is that this field is not widely known. For example, one would assume that theorists of cosmopolitanism, who examine in part the obligations that states have to non-nationals, would have sought to use private international law to bolster their claims, since private international law deals with the juridical status of foreigners. But this field has been absent from cosmopolitanism discourse, a gap I hope to remedy.

In your opinion, who will most benefit from your findings?
My doctoral work is aimed at two groups. First, I hope to influence contemporary debates in political and legal theory by demonstrating that a common assumption underlying the work of most political theorists – that a court will always apply the law of the state that created it – is incorrect. As such, I hope to open up a new avenue for theoretical inquiry.

Second, I also hope to influence the course of the development of private international law. My hope is that my novel justification for choice of law doctrine may influence the way legal doctrine develops in the future.

Within the next three to five years, what impact could your research have on the Canadian public policy debate?
Ideally my work will influence the development of Canadian private international law. I am seeking to explore the theoretical underpinnings of this critical area of law, to see whether the current approach can be justified.

I actually think that the current Canadian approach is very good, though, and as such I would like to see Canadian doctrine continue to develop as it has been under the Supreme Court’s guidance. I also think that Canadian private international law doctrine may be able to serve as a model for doctrinal developments in other countries.