Fundamental rights and recognition for private international law ; Droits fondamentaux et reconnaissance en droit international privé

Abstract

Article paru dans le numéro spécial consacré au "Droit international privé et droits fondamentaux / Private International Law and Fundamental Rights". ; International audience ; This article attempts to respond to the question of the editors of this journal, on the implications of fundamental rights and recognition for private international law. It suggests that the paradigmatic transformations which are taking place in post-modern thought in the name of recgntion within the social sciences, have implications for the law which are already apparent in contemporary theories of justice and democracy. In particular, recognition comes with an epistemology and a critical project which may mean that, in the end, there is little that is specific to "international" legal cases ; few grounds on which to distinguish the public (international) from the private (international) as distinct legal disciplines ; and no real sense in separating the need for recongnition as a matter of individual experience or collective transmission. It is likely that the changing fault lines within the law, which are already at work to transform the idea and effects of sovereignty in public international law, will lead to an analogous rethinking of the way in which law governs personal relationships in multicultural - including crossborder - settings. In order to track the demands that recognition is making of the law in the later context, this article begins by examining the focus of the current doctrinal debate on recognition, which concerns the frontiers of the conflict of laws as method. It then explores the deeper epistemological and axiologial implications of recognition, which are brought within private international law through the gateway of human rights. In this light, it seeks finally to show that recognition can also be seen as excavating an unfinished project of methological pluralism.