Comity: the American Development of a Transnational Concept

T. Schultz, N. Ridi
{"title":"Comity: the American Development of a Transnational Concept","authors":"T. Schultz, N. Ridi","doi":"10.9785/9783504385637-011","DOIUrl":null,"url":null,"abstract":"Throughout much of the world, the concept of comity has played a fundamental role in shaping modern private international law. Sometimes labelled as a “principle”, sometimes as a “doctrine,” it provided the foundation and informed the evolution of several rules of conflict. Its importance, however, gradually faded as the field of private international law slid into the preserve of the national legislator. Scholarly attention to the subject followed suit, and private international lawyers have, by and large, dismissed it as a historical relic in the name of which courts would sometimes fine-tune the reach of their national substantive law and jurisdictional rules, refrain from questioning the lawfulness of another sovereign state’s acts, and restrict themselves from issuing such judgments and orders when to do so would have amounted to an unjustifiable interference. Comity, however, never really vanished: as Lord Collins of Mapesbury put it, “comity may be a discredited concept in the eyes of the text-writers, but it thrives in the judicial decisions” – in particular, in those of American courts. This conclusion is not entirely surprising: comity has long been acknowledged as a foundational principle of American conflict of laws. It had a complex and haphazard evolution in the continent, which is partly to blame for modern assessments of the concept as imprecise and confusing. Yet, while the term has come to be employed to refer to a variety of practices, these practices share “certain methods, values, and justificatory rhetoric.” \nThe purpose of this study is to contribute to the elucidation of the notion of comity as it is understood in the United States – the jurisdiction where the greatest importance is attached to the concept. While other studies have examined this topic, they have mostly neglected to consider the phenomenon in a broader dimension and thus properly appraise the peculiarity of the American understanding of comity. It is submitted that this is particularly important insofar as the American understanding has affected the development of legal doctrines elsewhere, and stimulated further reflection on the role of the concept, especially when employed by prominent American scholars. This has in turn prompted the revitalisation of comity as a tool capable of alleviating problems of a global nature.","PeriodicalId":284503,"journal":{"name":"Yearbook of Private International Law Vol. XVIII - 2016/2017","volume":"34 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"2017-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Yearbook of Private International Law Vol. XVIII - 2016/2017","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.9785/9783504385637-011","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
引用次数: 1

Abstract

Throughout much of the world, the concept of comity has played a fundamental role in shaping modern private international law. Sometimes labelled as a “principle”, sometimes as a “doctrine,” it provided the foundation and informed the evolution of several rules of conflict. Its importance, however, gradually faded as the field of private international law slid into the preserve of the national legislator. Scholarly attention to the subject followed suit, and private international lawyers have, by and large, dismissed it as a historical relic in the name of which courts would sometimes fine-tune the reach of their national substantive law and jurisdictional rules, refrain from questioning the lawfulness of another sovereign state’s acts, and restrict themselves from issuing such judgments and orders when to do so would have amounted to an unjustifiable interference. Comity, however, never really vanished: as Lord Collins of Mapesbury put it, “comity may be a discredited concept in the eyes of the text-writers, but it thrives in the judicial decisions” – in particular, in those of American courts. This conclusion is not entirely surprising: comity has long been acknowledged as a foundational principle of American conflict of laws. It had a complex and haphazard evolution in the continent, which is partly to blame for modern assessments of the concept as imprecise and confusing. Yet, while the term has come to be employed to refer to a variety of practices, these practices share “certain methods, values, and justificatory rhetoric.” The purpose of this study is to contribute to the elucidation of the notion of comity as it is understood in the United States – the jurisdiction where the greatest importance is attached to the concept. While other studies have examined this topic, they have mostly neglected to consider the phenomenon in a broader dimension and thus properly appraise the peculiarity of the American understanding of comity. It is submitted that this is particularly important insofar as the American understanding has affected the development of legal doctrines elsewhere, and stimulated further reflection on the role of the concept, especially when employed by prominent American scholars. This has in turn prompted the revitalisation of comity as a tool capable of alleviating problems of a global nature.
礼让:一种跨国概念的美国发展
在世界大部分地区,礼让概念在形成现代国际私法方面发挥了根本作用。它有时被称为“原则”,有时被称为“学说”,为若干冲突规则的演变提供了基础和依据。然而,随着国际私法领域滑入国家立法者的领域,它的重要性逐渐减弱。学术界对这一主题的关注紧随其后,国际私人律师总体上将其视为历史遗迹,法院有时会以其名义微调其国家实体法和管辖规则的范围,避免质疑另一个主权国家行为的合法性,并限制自己发布此类判决和命令,因为这样做会构成不合理的干涉。然而,礼让从未真正消失:正如梅普斯伯里的柯林斯勋爵(Lord Collins of Mapesbury)所说,“礼让在文本编写者眼中可能是一个不可信的概念,但它在司法判决中蓬勃发展”——尤其是在美国法院。这个结论并不完全令人惊讶:礼让一直被认为是美国冲突法的一项基本原则。它在非洲大陆经历了复杂而偶然的演变,这在一定程度上要归咎于现代对这一概念的评估不精确和令人困惑。然而,当这个术语被用来指各种各样的实践时,这些实践共享“某些方法、价值和正当的修辞”。本研究的目的是有助于阐明在美国所理解的礼让的概念- -美国的司法管辖区最重视礼让的概念。虽然其他研究也研究过这个问题,但他们大多忽视了从更广泛的维度来考虑这一现象,从而正确评估美国人对礼让的理解的独特性。有人认为,这一点尤其重要,因为美国的理解影响了其他地方法律理论的发展,并刺激了对这一概念的作用的进一步思考,特别是在美国著名学者使用这一概念时。这反过来又促进了礼让作为一种能够缓解全球性问题的工具的复兴。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
求助全文
约1分钟内获得全文 求助全文
来源期刊
自引率
0.00%
发文量
0
×
引用
GB/T 7714-2015
复制
MLA
复制
APA
复制
导出至
BibTeX EndNote RefMan NoteFirst NoteExpress
×
提示
您的信息不完整,为了账户安全,请先补充。
现在去补充
×
提示
您因"违规操作"
具体请查看互助需知
我知道了
×
提示
确定
请完成安全验证×
copy
已复制链接
快去分享给好友吧!
我知道了
右上角分享
点击右上角分享
0
联系我们:info@booksci.cn Book学术提供免费学术资源搜索服务,方便国内外学者检索中英文文献。致力于提供最便捷和优质的服务体验。 Copyright © 2023 布克学术 All rights reserved.
京ICP备2023020795号-1
ghs 京公网安备 11010802042870号
Book学术文献互助
Book学术文献互助群
群 号:604180095
Book学术官方微信