Belonging through law: A Model-Theoretical Reconstruction of the Personal Statute in Private International Law

In Law, belonging (Heimaten) is both a foundation and an object of social negotiation processes. This is most evident, but not limited to, the Conflicts of Laws, which determine the applicable law in cross-border legal disputes between private parties. The personal connecting factors of nationality, domicile, and habitual residence can be considered representations of belonging. The lawmaking processes underlying these disputes are infused with a socio-ethical principle of equal belonging, which translates into a general narrative of Conflict of Laws. Yet, are these principles upheld in daily practice?

The project identifies a tension between reality and utopia and, with it, a tension between legal practice and its normative guiding ideals. This tension is inherent in all representations of home or belonging in the legislation and practice of cross-border legal disputes. 

With this in mind, the project puts a special focus on the conflictual dimensions of belonging in ‘personal status’. Here, the normative ideal of applying foreign law regardless of the outcome (“deference to the foreign”) and the reality of such application, where domestic values are prioritized, diverge. Second, Conflict of Laws’ self-proclaimed function as a “neutral allocation system” and its integrative and socio-political aims collide.

For want of mechanisms for identifying and resolving this tension in doctrinal Conflict of Laws scholarship, the project uses model theory to identify several dimension(s) of belonging. These dimensions are inherent in the doctrinal discourse surrounding the personal connecting factors of nationality, domicile, and habitual residence. Using social philosophy and ethics, the project develops solutions to bridge the gap between reality and utopia in Conflict of Laws practice.