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CITIZENSHIP, PUBLIC AND PRIVATE

K AREN K NOP *

I

I NTRODUCTION

This article argues first and foremost for seeing private international law, or

conflict of laws, as a private side of citizenship. 1 Although we ordinarily think of

citizenship as public, private international law covers the same ground as

postnational citizenship and differentiated citizenship. Among other

developments, the idea of postnational, or denationalized, citizenship captures

the fact that noncitizens have come to have many of the rights traditionally

limited to citizens. 2 Similarly, private international law can include noncitizens

through rules such as those regarding standing to sue and jurisdiction.

Differentiated citizenship is the result of policies of multiculturalism in western

democracies. In some cases, citizenship branched out from individual rights, to

the rights of individuals belonging to minorities, all the way to the collective

rights of minorities; and from rights to religion, language, and culture, to forms

of autonomy for historical minorities. Comparable to differentiated citizenship,

private international law controls the heterogeneity of a society via such rules as

choice of law and recognition of foreign judgments.

In fact, framing private international law as the private side of citizenship is

a restorative rather than a radical move. 3 In his lapidary essay on ideals of

This Article is also available at http://www.law.duke.edu/journals/lcp.

* Faculty of Law, University of Toronto. For conversations, comments, and criticisms, I thank

Audrey Macklin, Ralf Michaels, Annelise Riles, Ayelet Shachar, and participants in conferences and

workshops at the American Society of International Law, Birkbeck College School of Law, Cornell

Law School, University of Georgia School of Law, University of Toronto Faculty of Law, and Yale Law

School. I am also grateful to Sooin Kim and Umut Özsu for their helpful research assistance and to the

Social Sciences and Humanities Research Council of Canada for funding the larger project that gave

rise to this article.

1. In this article, “nationality” and “citizenship” are used fairly interchangeably. Strictly speaking,

the former is used in the North American and western European literature to refer to the external

aspects of membership in the state dictated by international law, and the latter denotes the internal

aspects specified by the law of the state in question.

2 . See, e.g. , L INDA B OSNIAK , T HE C ITIZEN AND THE A LIEN : D ILEMMAS OF C ONTEMPORARY

M EMBERSHIP 23–26, 34–35 (2006).

3. Several scholars in significant recent work have drawn on some theory of citizenship to

improve private international law or, vice versa, have argued for improving citizenship by substituting

some concept from private international law. The former include Paul Schiff Berman in The

Globalization of Jurisdiction , 151 U. P A . L. R EV . 311 (2002) (arguing that private international law

should be approached explicitly in terms of its community-creating potential) and Towards a

Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era , 153 U.

P A . L. R EV . 1819 (2005) (culling what he sees as the cosmopolitan ingredients of successive approaches

to choice of law and custom mixing a prescription for it); Lea Brilmayer, Rights, Fairness, and Choice of

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citizenship since classical times, the historian J.G.A. Pocock distinguishes the

tradition of legal citizenship attributed to the Roman jurist Gaius from that of

political or republican citizenship associated with the Greeks, particularly

Aristotle. 4 In the Gaian tradition, “the status of ‘citizen’ . . . denotes

membership in a community of shared or common law, which may or may not

be identical with a territorial community.” 5 Over many centuries, legalis homo ,

as Pocock calls him, has come to mean someone who can sue and be sued in

certain courts. The Gaian formula for citizenship is quintessentially private,

epitomized by civil rights like property, contract, and tort. When we talk today

about citizenship as rights, though, we no longer think much about the

horizontal relationship between individuals expressed through the state’s law

and enforced by its courts. Instead, we tend to think of the individual’s vertical

legal relationship to the state. 6

Opening with an example of a terrorist “at home,” part II of this article

differentiates public citizenship and private citizenship (public/private

citizenship) and presents private international law as the private side of

citizenship in the Roman tradition. Because it harks back to legalis homo ,

however, private international law turns assumptions about citizenship upside

down. 7 What is old is new, and what is new is old. Private international law feels

like an anachronism because it ends where most work on citizenship begins. At

the margins, its transnational nature puts into question basic civil rights that

citizenship theorists usually take for granted, for citizens and even for

noncitizens. In part III, English and Canadian 8 private-international-law cases

involving enemy aliens and illegal immigrants serve as illustrations.

Paradoxically, private international law also feels remarkably modern because,

Law , 98 Y ALE L.J. 1277 (1989) (developing a political-rights-based approach to choice of law); and J.J.

Fawcett, The Impact of Article 6(1) of the ECHR on Private International Law , 56 I NT ’ L & C OMP . L.Q.

1 (2007) (proposing to update private international law by integrating human rights into the traditional

doctrines). The latter are notably Paul Schiff Berman, Global Legal Pluralism , 80 S. C AL . L. R EV . 1155,

1228–35 (including Berman’s cosmopolitan approach to conflicts as one of the techniques for managing

hybrid legal spaces in the spirit of legal pluralism); and Theodora Kostakopoulou, Citizenship Goes

Public: The Institutional Design of Denationalized Citizenship, J. P OL . P HIL . (forthcoming 2008) (on

file with author) (arguing that domicile is a better foundation for denationalized citizenship than

nationality is). None of these authors, however, has either made or needed the historical connection.

For historically engaged conflicts scholarship in a related vein, see Ralf Michaels, Globalizing Savigny?

The State in Savigny’s Private International Law and the Challenge from Europeanization and

Globalization , in D EZENTRALISIERUNG . A KTUELLE F RAGEN POLITISCHER UND RECHTLICHER

S TEUERUNG IM K ONTEXT DER G LOBALISIERUNG 119, 135–39, 143–44 (Michael Stolleis & Wolfgang

Streeck eds., 2007) (discussing the meaning of citizenship in Savigny’s private international law, then

and now). In comparison to this scholarship, the present article explores the actual role and intuitions

of private international law as one side of citizenship.

4. J.G.A. Pocock, The Ideal of Citizenship Since Classical Times , 99 Q UEEN ’ S Q. 33 (1992).

5 . Id. at 41.

6 . See, e.g. , B OSNIAK , supra note 2, at 18–19.

7 . Cf. Ralf Michaels & Nils Jansen, Private Law Beyond the State? Europeanization,

Globalization, Privatization , 54 A M . J. C OMP . L. 843, 871–72 (2006) (observing that the public/private

distinction gets turned upside down in the international sphere).

8. Except when otherwise indicated, the discussion in this article is limited to common-law

Canada.

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read against the citizenship literature, it begins where much of the more

sophisticated work on citizenship ends. Indeed, compared to private

international law, some of the most controversial proposals for multicultural

citizenship seem quite standard. Whereas part III looks at the divide between

citizens and noncitizens, part IV deals with multiculturalism, particularly the

regulation of immigrants belonging to religious minorities. Using examples

drawn from English and Canadian family law, it shows how private

international law has the ability to normalize, structure, and otherwise help

imagine what multicultural citizenship does and could look like.

Parts III and IV demonstrate that judges have, in effect, used the form of

the private to check the intolerance of the public. In the enemy-alien and

illegal-immigrant cases, the legal asymmetry between “us” and “them” emerges

as violence to be mitigated, whereas it appears as a form of respect within

bounds in the regulation of immigrant minorities. Grounded in this discussion,

this article’s second argument is that in times of great stress for a state—war,

widescale illegal immigration, stark cultural difference—private international

law can sometimes be more cosmopolitan than public law, and in illuminating

ways. Instead of the growing equality of treatment between citizens and

noncitizens anticipated by the idea of postnational citizenship, the years after

9/11 have seen governments exploit the lesser legal protections for noncitizens

in their campaigns against global terrorism. 9 In addition, the citizenship

literature traces a shrinking of citizenship whereby dual and minority citizens

who do not fall within the majority’s national self-image—who are not part of

the “us”—can no longer be certain that their citizenship will protect them. 10

Despite earlier confidence in differentiated citizenship, 11 the fight against

terrorism has also brought increasing apprehensiveness about multiculturalism,

especially as it concerns Muslim minorities. 12 It may be surprising to progressive

thinkers that common-law private international law has sometimes served as a

counterweight to the jingoist and parochial impulses of citizenship law in

periods of increased nationalism. The negative potential of the private is

familiar, whereas such moments of actually existing cosmopolitanism are not. 13

9. In the U.K. context, Clive Walker describes the weaponization of nationality. Clive Walker,

The Treatment of Foreign Terror Suspects , 70 M OD . L. R EV . 427, 439–41 (2007).

10 . See, e.g. , Peter Nyers, The Accidental Citizen: Acts of Sovereignty and (Un)making Citizenship ,

35 E CON . & S OC ’ Y 22 (2006); Juliet Stumpf, Citizens of an Enemy Land: Enemy Combatants, Aliens,

and the Constitutional Rights of the Pseudo-Citizen , 38 U.C. D AVIS L. R EV . 79 (2004); Leti Volpp, The

Citizen and the Terrorist , 49 UCLA L. R EV . 1575 (2002); Walker, supra note 9, at 439.

11 . See W ILL K YMLICKA , M ULTICULTURAL O DYSSEYS : N AVIGATING THE N EW

I NTERNATIONAL P OLITICS OF D IVERSITY (2007).

12 . See, e.g. , Audrey Macklin, The Securitisation of Dual Citizenship , in D UAL C ITIZENSHIP IN

G LOBAL P ERSPECTIVE : F ROM U NITARY TO M ULTIPLE C ITIZENSHIP 42, 59–61 (Thomas Faist & Peter

Kivisto eds., 2007); Tariq Modood, Remaking Multiculturalism After 7/7 , O PEN D EMOCRACY 1–2

(Sept. 29, 2005), http://www.opendemocracy.net/conflict-terrorism/multiculturalism_2879.jsp (last

visited July 5, 2008).

13. Among the few historical accounts of common-law private international law’s complexity and

fruitfulness are M ARIANNE C ONSTABLE , T HE L AW OF T HE O THER : T HE M IXED J URY AND

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While human-rights law insists that the foreigner or stranger is a fellow human

being, private international law says that she is one of “us”—even in, and

sometimes even because of, such times of stress. This, of course, is not enough,

and the violence done to those still left outside is integral to this article’s

discussion of greater inclusion. But the key is that private international law

operates at a near distance.

It is important to specify here what is meant by cosmopolitanism. 14 After all,

the greater cosmopolitanism of the private might not be so unexpected when it

comes to the market. The goal of market cosmopolitanism is a single global

sphere of free trade, which market cosmopolitans believe will promote

worldwide peace while enhancing individual freedom and reducing the role of

states. 15 However, this is not the sort of cosmopolitanism I have in mind. The

field of private international law operates on what Immanuel Kant discusses

under cosmopolitan law: international commerce in the broad sense of any kind

of communication, interaction, trade, or business across borders. It is triggered

by travel and emigration as well as by commercial endeavors. 16 In extending

standing to sue and the jurisdiction of the courts to a stranger, private

international law can be seen as falling under Kant’s rubric of hospitality. 17 In

addition, private-international-law rules on recognition of judgments and choice

of law are centrally engaged with cultural cosmopolitanism. Cultural

cosmopolitanism,

insofar as it is based on the essential moral equality of all human beings, implies a

form of moral cosmopolitanism. But whereas moral cosmopolitanism focuses on

individuals, cultural cosmopolitanism focuses on the value of collectives (cultures),

and because it values cultural pluralism positively, cultural cosmopolitanism has some

political implications of its own. It implies that states, peoples, and ethnic groups, in

their dealings with each other, should value and tolerate cultural differences (provided

no basic moral norms are being violated). 18

To elaborate and analyze the private paradigm of citizenship, this article

distinguishes between cosmopolitan form, tradition, and space. “Form” refers

to the structure, or architecture, of the private. As citizenship, the private

begins in a more cosmopolitan place than the public and asks a more

cosmopolitan set of questions. Cosmopolitan “tradition” sums up the answers to

these questions in a particular line of private-international-law cases related to

the regulation of noncitizens or minorities. Cosmopolitan “space” means the

C HANGING C ONCEPTIONS OF C ITIZENSHIP , L AW , AND K NOWLEDGDE (1994) and R OBERT M.

C OVER , J USTICE A CCUSED : A NTISLAVERY AND THE J UDICIAL P ROCESS 83–99 (1975).

14. On the different varieties of cosmopolitanism, see Pauline Kleingeld, Six Varieties of

Cosmopolitanism in Late Eighteenth-Century Germany , 60 J. H IST . I DEAS 505 (1999).

15 . Id. at 518.

16 . Id. at 513.

17 . See I MMANUEL K ANT , T O P ERPETUAL P EACE : A P HILOSOPHICAL S KETCH , para. 358 (Ted

Humphrey ed. 2003) (1795).

18.Kleingeld, supra note 14, at 518; see also K WAME A NTHONY A PPIAH , C OSMOPOLITANISM :

E THICS IN A W ORLD OF S TRANGERS xv (2006); David Held, Law of States, Law of Peoples: Three

Models of Sovereignty , 8 L EGAL T HEORY 1, 37–38 (2002); Jeremy Waldron, What is Cosmopolitan? , 8

J. P OL . P HIL . 227, 242–43 (2000).

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sociological effects of private international law, which can shift a state’s

boundary between who’s in and who’s out, can diversify its society, and can

bind it to certain other states through a kind of outsourcing or exteriorizing of

multiculturalism. 19

The claim here is not that private international law’s cosmopolitan form will

inevitably produce cosmopolitan tradition and space, but that it has actually

done so, and at times when we might not expect it to have done so. Of course,

this has not always happened. The colonial history of extraterritorial

jurisdiction is a prime example, as Teemu Ruskola’s contribution to this

symposium shows. 20 But this possibility simply reinforces the case for making

private international law visible again as a side of citizenship.

Distinguishing cosmopolitan form from cosmopolitan tradition and space

leads to this article’s third and final argument: namely that private international

law’s importance for citizenship is not only as a neglected private side of it, but

also as a lens on citizenship more generally. In piecemeal fashion, those on the

public side of things are working through questions of inclusion and diversity

that have been fundamental to the private all along. Seen as form, private

international law appears as a highly developed set of techniques for raising and

engaging such questions. Private international law furnishes technicalities at

their most technical. 21 And the hypertechnical becomes theory in that it expands

the parameters and the complexity of the thinkable. 22 Using the rules on proof

of foreign law as an example, part IV demonstrates how private international

law might be a nonintuitive but promising way of thinking through issues

integral to multiculturalism and citizenship generally. In the citizenship context,

then, this article joins work in this symposium and elsewhere 23 that seeks to

reinvent private international law for an era of global governance.

19. Although connected to ideas of diaspora, cosmopolitan space is not confined to migration. See,

e.g. , infra note 147 and accompanying text. Cosmopolitan space is also closely related to conceptions of

hybridity developed by legal pluralists, but differs in its focus on state-based law.

20. See generally Teemu Ruskola, Colonialism Without Colonies: On the Extraterritorial

Jurisprudence of the U.S. Court for China , 71 L AW & C ONTEMP . P ROBS . 217 (Summer 2008).

21 . See generally Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the

Technicalities , 53 B UFF . L. R EV . 973 (2005).

22 . See Karen Knop, Ralf Michaels & Annelise Riles, The Fall and Rise of Private International

Law: From Conflict of Laws to Theory of Private Global Governance (draft presented at the

Globalization, Law & Justice Workshop, Faculty of Law, University of Toronto (Nov. 1, 2007))

(manuscript at 31–36, on file with authors).

23 . See Karen Knop, Ralf Michaels & Annelise Riles, Foreword , 71 L AW & C ONTEMP . P ROBS . 1

(Summer 2008).

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II

P RIVATE I NTERNATIONAL L AW AS P RIVATE C ITIZENSHIP

A. The Public/Private Distinction in Citizenship

In The Good Terrorist , 24 Doris Lessing’s bleakly satirical novel about the

inner life of a small group of homegrown revolutionaries in Thatcher’s England,

the mainspring is the contradiction between public and private forms of

participation in the state, and thereby between public and private ways of

belonging to it. Lessing’s heroine, Alice Mellings, is the “good terrorist” in the

sense that she is good at terrorism: she is part of the group’s transformation

from “a collection of dissatisfied radicals into a terrorist gang.” 25 In this public

realm, the group’s members shift from peaceful protest to political violence,

from picketing and demonstrating to a bungled plan to manufacture and

explode bombs in central London. However, Alice is the good terrorist in a

double sense. Her love of homemaking and her domestic skills transform the

cold, filthy, derelict house in which the revolutionaries are squatting. She uses

her intuition for people and her reassuring air of middle-class respectability to

convince the local authorities to turn the heat and electricity back on. Her

elbow grease, along with the judicious pinching of her mother’s old carpet and

drapes, make the squat into a comfortable home—so inviting, in fact, that one

of the housing bureaucrats she meets along the way later asks to move in.

Indeed, it is the brisk efficiency Alice exhibits as a housekeeper that makes her

potentially more dangerous and hence a more desirable recruit to the

professional terrorist squatting next door than the men in the group, whom he

does not take seriously. Lessing’s novel is driven by the active contradiction

between Alice’s rage at the unfairness of the political system and her growing

willingness to smash it, and the personal pride she takes in the somewhat

conventional home that she has made. The tension is not between her feelings

for her country and some other object of loyalty such as to an ideal, to family,

or to friends. Although Alice remains devoted to Jasper, a naïve and petulant

amateur of revolution who is often cruel to her, and although she is fond of

some of the other members of the group, her loyalty is to the house and its

hominess. Despite her rejection of England, this desire for domestic coziness is

among the traits that have caused the character of Alice to be read as a

personification of England. 26 The novel’s contrast, then, is between the rejection

of place in a political sense and an earthier kind of attachment to it.

Puttick v. Attorney General , 27 an English private-international-law case from

the same period, provides a surprising legal parallel to the public/private

24.D ORIS L ESSING , T HE G OOD T ERRORIST (1985).

25.AlisonLurie, Bad Housekeeping , N.Y. R EV . B OOKS , Dec. 19, 1985, at 8, 10 (reviewing

L ESSING , supra note 24), available at http://www.nybooks.com/articles/5261 (last visited July 5, 2008).

26 . Id.

27. [1980] Fam. 1 (1979).

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belonging in Lessing’s novel. At issue was whether the petitioner, Anna Puttick,

was domiciled in England, thereby giving the court jurisdiction to hear her

petition for a declaration of the validity of her marriage. “Anna Puttick” was, in

fact, the false identity of Astrid Proll, a member of the Red Army Faction

(“RAF”) or Baader-Meinhof Group. 28 Often referred to by the names of its

founders, Andreas Baader and Ulrike Meinhof, the Baader-Meinhof gang was a

German terrorist group that committed arson, bank robberies, jail breaks,

murders, kidnappings, hostage-takings, and other acts of violence.

The facts of Puttick were that Astrid Proll’s criminal trial in Germany for

robbery and attempted murder had been adjourned because of her ill health,

and she had been released on bail. Proll jumped bail and fled from Germany to

England using the passport of another German woman, which she had bought

on the black market. Like the terrorist group in Lessing’s novel, the Red Army

Faction was committed to an explosive mix of communism and anarchism

directed against the establishment. Their modus operandi included acts of

“consumer terrorism” against well-known department stores and other symbols

of German postwar materialism. Like Alice Mellings, Proll lived in a series of

communal squats in England. Also like Alice, most RAF members were not

working class and were accustomed to bourgeois comfort. 29 They used

Mercedes, BMW, and other luxury cars for their getaways—Baader was caught

in a stakeout after arriving in a lilac Porsche 30 —and the 1998 publication of

Astrid Proll’s coffee-table book of photographs, Baader-Meinhof: Pictures on

the Run 67-77 , 31 led to a craze for the group’s style of “Terror Chic.” 32

The figure of Astrid Proll thus reflects some of the heightened

public/private contradictions around which Lessing structures The Good

Terrorist . In addition, the Puttick case revolves around the legal manifestation

of these contradictions. In an effort to prevent her deportation to Germany to

proceed there with the criminal trial, Proll argued that she had the right to be

deemed a British subject on the basis of her marriage to an English national. 33

Hence, the public-law status of citizen hinged on the private-law determination

of marriage. Still more to the point, for the court to have jurisdiction under the

matrimonial-causes legislation, Proll had to be domiciled in England when the

petition was presented. In other words, the traditional legal threshold was

where Proll made her home—where she belonged, for the purposes of private

28. For background on Astrid Proll and the Puttick case, see Dea Birkett, G UARDIAN , Aug. 29,

1998, at TT.020.

29 . See ILLIAN B ECKER , H ITLER ’ S C HILDREN : T HE S TORY OF THE B AADER -M EINHOF

T ERRORIST G ANG (1977). The description in Chapter 10 is particularly revealing. Id.

30 . Seeid. at 192, 231, 247.

31.H ANS UND G RETE /D IE R AF 67–77 (Astrid Proll ed. 1998) (German title).

32.KateConnolly, Astrid Proll’s Journey to Terror Chic , O BSERVER (London), Oct. 8, 2002,

available at http://observer.guardian.co.uk/print/0,,4516105-102275,00.html (last visited July 5, 2008).

33. R. v. Sec’y of State for the Home Dep’t ex parte Puttick, [1981] 1 Q.B. 767, 770–71 (1980).

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law. 34 Puttick thus presents the disconcerting spectacle of an English court

deciding whether a German terrorist was “at home,” so to speak, in England.

The court was not particularly fazed by Proll’s unorthodox lifestyle in England,

her decamping from one squat to another, scarcely remembering the addresses.

What decided the case against her was that she did not choose England as her

home. Rather, her only concern was to live anywhere out of reach of the

German authorities so long as she was still faced with trial in Germany. “[S]he

was a woman on the run,” as the court put it. “Her intention to remain in

England, for whose laws she has shown contempt, and for whose institutions

and way of life she has never, so far as I know, expressed any admiration, was a

secondary intention forced upon her only as necessary to achieve her primary

object.” 35 Although the ratio decidendi in Puttick was this absence of intention

to remain in England, the court in obiter dicta also endorsed the view of the

leading English conflicts textbook that domicile cannot be established by illegal

residence. 36 In further dicta, the court maintained that domicile could not be a

unilateral choice by Proll: “The hosts, that is, the people of England as

represented by the Crown,” were entitled to participate in the choice, and they

had been deprived of the opportunity because her residence in the country was

achieved by manipulating the immigration law through lies, impersonation, and

fraud. 37

In 2005, however, the House of Lords ruled that an immigrant spouse

illegally present in England was domiciled there for the purpose of matrimonial

jurisdiction. 38 In Mark v. Mark , the House of Lords held unanimously that

illegality is relevant only to the factual finding of intention. 39 Thus, had Proll

been demonstrably attached to place like Lessing’s Alice Mellings, she might

well have cleared the jurisdictional hurdle to have her petition heard—

regardless of her disregard for both English rule of law and English

housekeeping.

The fictional Alice Mellings and the real Astrid Proll thus highlight what we

might think of as the private side of citizenship. In both cases, the usual focus

would be on public matters, whether on political action (Alice) or entitlement

to citizenship (Proll). In The Good Terrorist and in Puttick , however, it is the

private side of belonging that is scrutinized and on which much turns: the ways

that Alice’s life takes root through her attachment to the house and the

question where Proll calls “home.”

34 . See Whicker v. Hume, (1858) 7 H.L. Cas. 124, 160 (appeal taken from Ch.) (Domicile means

permanent home as commonly understood.). But see Bell v. Kennedy, (1868) 1 L.R.S. & D.App. 307,

320 (Domicile is nevertheless “an idea of law.”).

35. Puttick v. Attorney General, [1980] Fam. 1, 18 (1979).

36 . Id. at 19.

37 . Id. at 18–19.

38 . See Mark v. Mark, [2005] UKHL 42, [2006] 1 A.C. 98, 117. The Mark case is discussed further

in III.B, infra . The key point here is its consideration of Puttick .

39 . Id. at 106, 117.

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It is not entirely coincidental that Alice and Astrid are women. Feminist

writing on citizenship has delved into the public/private dichotomy that

structures various well-established notions of citizenship and has criticized the

relegation of women to the lesser-valued private side of the dichotomy. The

character of Alice can actually be seen as instantiating familiar feminist

critiques of two conceptions of public/private citizenship. In the republican or

Aristotelian tradition, citizenship is about participation in the political life of

the state. The household matters only insofar as it facilitates this involvement in

governance. 40 This scale of value is reflected in The Good Terrorist , which can

be read as a rejection of the “angel in the house” style of women’s novel. 41

Lessing’s story satirizes the persistence of patriarchy even among a group of

revolutionaries: Alice’s comrades go out to demonstrate and picket or plant

bombs, while she puts things to right with the house, prepares nourishing meals,

and soothes their emotional hurts. Convinced that her work is integral to theirs,

Alice is devastated when her mother lashes out at her, telling her “it turned out

that you spend your life exactly as I did. Cooking and nannying for other

people. An all-purpose female drudge.” 42 Although The Good Terrorist depicts

the group’s political actions as ineffectual if not ridiculous, it is nevertheless

allied with the feminist critique that women have less access to the all-important

public square. A further feminist irony is that it is precisely Alice’s genius for

housekeeping, largely unappreciated by the other squatters, that enables them

to be protesters and ultimately to become terrorists.

Lessing’s novel also recalls a second, psychological conception of citizenship

related to group identity. On this understanding, citizenship involves belonging

to a community in the thick cultural sense. In contrast to Aristotelian

citizenship, which values the public, the heart of the affective notion of

citizenship can be the private. For instance, in the context of decolonization,

Partha Chatterjee argues that this private-over-public emerged from the

attempt to make anticolonial nationalism consistent with modernization. 43

According to the nationalists, the West was most powerful in the material realm

and had subjugated the East through its superior science, technology, forms of

economic organization, and methods of statecraft, but it had not colonized the

East’s inner essential identity, which lay in “its distinctive, and superior,

spiritual culture.” 44 Thus, the public sphere could modernize without sacrificing

the nation’s distinctiveness because the function of the private sphere, and

therefore the function of women, would become to represent national culture.

40.Pocock, supra note 4, at 36. For the purposes of the current discussion, this is the key

public/private distinction in the republican conception of citizenship. It is, however, not the only one.

See B RUCE A CKERMAN , 1 W E T HE P EOPLE : F OUNDATIONS 230–65 (1991).

41 . See Lurie, supra note 25, at 9; Margaret Scanlan, Language and the Politics of Despair in Doris

Lessing’s “The Good Terrorist , ” 23 NOVEL: A F ORUM ON F ICTION 182, 193–94 (1990).

42.L ESSING , supra note 24, at 329.

43.P ARTHA C HATTERJEE , T HE N ATION AND I TS F RAGMENTS : C OLONIAL AND P OSTCOLONIAL

H ISTORIES 119–21 (1993).

44 . Id. at 121. It should be noted that there is a rich literature on nationalism and gender.

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More specifically, women were needed both to symbolize the nation’s progress

by becoming better educated than women of previous generations, and to

instantiate its cultural tradition by being more feminine and refined than

western women. 45 If Alice Mellings’s housekeeping is an inferior kind of work

on the Aristotelian view of citizenship, it also carries this double signification of

the private in notions of affective citizenship. On the one hand, the squat is

intended as a model of socialist living. On the other, Alice transforms the house

into the very picture of Englishness. 46

Although republican citizenship and the cultural or affective conception of

citizenship related to group identity do not originate in law, each can be found

in public law; the former in states’ legal conditions for the acquisition and loss

of citizenship, for example, and the latter in the multicultural citizenship

reflected in international human-rights law and constitutional law. Puttick

reread in light of Mark brings in a third, distinctively legal model of citizenship

traceable to Roman law: Pocock’s legalis homo . 47 The case illustrates how we

can see private international law as the private side of citizenship in the Roman

tradition. It also suggests that the import of this private side of citizenship is less

straightforward than that of either its republican or cultural counterpart. Like

The Good Terrorist , Puttick (via Mark ) conjures up the terrorist in the

quotidian. But, unlike Lessing’s novel, private international law takes seriously

the potential of the idea that regardless of opposition to the state or loyalty to

another form of identity, an individual may consider herself “at home” in that

state. 48

B. Public/Private Citizenship and the Normality of the Cosmopolitan

As the “terrorist at home” example illustrates rather starkly, the paradigm

of citizenship discernible in private international law may not be the same as the

public paradigm employed in the fast-expanding citizenship literature. Most

writers on citizenship begin with the picture of the sovereign state found in

public international law, even if only to diminish or reject its significance. 49 In

this picture, each state has exclusive control over its territory, and the people of

the state are joined to it by nationality. Paradigmatically, the state’s laws

operate within its borders, and its nationals live within its borders. From this

clear-cut picture of the state, citizenship analysis may move to the blurriness

caused by economic globalization, supra- and subnational institutions, mass

45 . Id. at 127–30. But see, e.g. , I NDERPAL G REWAL , H OME AND H AREM : N ATION , G ENDER ,

E MPIRE , AND THE C ULTURES OF T RAVEL 7 (1996) (seeing home as the original site not only of

nationalism, but also of feminism, since it is here that women can resist the formations of nationalism).

46 . See Scanlan, supra note 41, at 194.

47.Pocock, supra note 4, at 41.

48. For a related project that turns to the private domain of citizenship as against the familiar

alternatives of state sovereignty and human rights, see Leora Bilsky, Citizenship as Mask: Between the

Imposter and the Refugee , 15 C ONSTELLATIONS 72, 81 (2008).

49 . See,e.g. , S EYLA B ENHABIB , T HE R IGHTS OF O THERS : A LIENS , R ESIDENTS AND C ITIZENS 4–7

(2004).

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migration, refugee flows, and other phenomena of interdependence that

challenge the analysts to think differently about the boundaries of community

and membership. Accordingly, we next find explorations in the direction of

postnational citizenship: overlapping identities (dual nationality), a spectrum of

membership (rights of noncitizens, including basic human rights and those

rights specific to refugees, migrant workers, residents, and so on), and lived

membership (a right to naturalization of noncitizens born and raised in the

state).

In contrast, it is an obvious, but profound and underadvertised point that

private international law is based on the normality of encountering the foreign.

Private international law starts with a different set of assumptions about the

interaction of states. It begins with the idea that there will be individual comings

and goings across borders. The very raison d’être of private international law is

that the state will inevitably contain foreigners of different kinds—not only

those who aspire to citizenship, but also those who are de passage , traders,

exiles, expatriates, transmigrants—and this will necessarily draw states into a

relationship with one another. Furthermore, such individuals may be regulated

by the laws of more than one state and thus belong to more than one state.

Private international law is tasked with where and how to work out these

collisions between laws. Hence, phenomena such as globalization and mass

migration do not disturb the private-international-law paradigm; they chiefly

intensify what is already inherent in it. It follows that overlapping identities,

different kinds of membership in the state, lived membership—virtually all of

the innovative ways of theorizing identity and citizenship—correspond to

traditional private-international-law techniques and their interaction with

public law.

In the common law, the individual’s relationship to place also differs from

public to private. Short of full-fledged citizenship, the law of public membership

is concerned with residence . At its most minimal, residence is simply some

length of physical presence. As a metric of legal entitlement—perhaps

ultimately to citizenship—residence tends to assume some positive contribution

to or participation in the life of the state. 50 For example, illegal immigrants are

part of the economy, or foreign workers send their children to school.

Residence is keyed to the individual’s vertical relationship to the state.

Private international law could, of course, share public law’s marker of

belonging and employ nationality as the legal link. This is true historically of the

civil-law tradition, at least since Mancini. In contrast, common-law countries use

a different connecting factor for private international law. 51 As just seen, access

50 . See,e.g. , R UTH R UBIO -M ARÍN , I MMIGRATION AS A D EMOCRATIC C HALLENGE : C ITIZENSHIP

AND I NCLUSION IN G ERMANY AND THE U NITED S TATES 83–89 (2000) (discussing the contribution

argument as applied to illegal immigrants).

51. For historical background, see L. I. de Winter, Nationality or Domicile?: The Present State of

Affairs , 128 R ECUEIL DES C OURS 347, 361–77 (1969). It should be noted that this contrast between

nationality and domicile developed only in the nineteenth century, id. at 366, and also that the

conception or conceptions of domicile vary from one legal system to another, see, e.g. , Ronald H.

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to the English courts operates on a distinct notion of “home,” found in tests for

jurisdiction such as domicile . 52 Jurisdiction does not rest simply on the subject’s

humanity and presence within the state, as it does for the purposes of many

human rights, which immediately include the subject. But unlike the

assumptions made about residence in certain citizenship theories, residence as

an element of domicile is not concerned with participation in the life of the state

or some notion of graduated interdependence that would demand inclusion.

Instead, the relationship to place is quite literally to the place and not to the

state. A person can be domiciled in a country without ever naturalizing and,

conversely, can naturalize without necessarily being found to be domiciled in

that country. 53 In fact, the relationship to place may even be against the state.

The element of intent in domicile allows for the individual’s self-exclusion or

inclusion, and on the individual’s own terms. 54 Domicile is formally committed

to “my choice, my way,” whereas nationality is a two-way relationship and a

relationship based on the acceptance of common values. To quote Martin Wolff

(himself a Jewish refugee who had fled from Nazi Germany, which denied his

very status as citizen), 55

The domicile system looks on the status of a person, his capacities, and his personal

rights, as something closely connected with his personal home and his family, this

being the centre of his life. It allows a person to change the law governing his personal

situation by his own private act, that is, by changing his domicile. It is, so to speak, an

individualistic and liberal system. 56

Therefore, if an individual is domiciled in a state other than her state of

nationality, the result is overlapping state-based identities without dual

nationality; 57 a set of entitlements grounded in domicile as well as human rights

and any rights specific to her as a refugee, migrant worker, resident, or other

recognized category of nonnational; and a membership capable of reflecting

Graveson, The Comparative Evolution of Principles of the Conflict of Laws in England and the U.S.A. ,

99 R ECUEIL DES C OURS 21, 41–55 (1960).

52 . See discussion of the Puttick case supra II.A.

53 . See 1 D ICEY , M ORRIS AND C OLLINS ON THE C ONFLICT OF L AWS 136 (Lawrence Collins ed.,

14th ed. 2006); see also infra note 136.

54. This is, of course, a radically incomplete account of domicile, which, like nationality, replicated

gender and cultural stereotypes. Consider, for example, the old patriarchal idea of dependent domicile

for married women, see Annalise Acorn, Gender Discrimination in the Common Law of Domicile and

the Application of the Canadian Charter of Rights and Freedoms , 29 O SGOODE H ALL L.J. 419 (1991), or

the resistance to the possibility a westerner could acquire a domicile in a “heathen” land, which

underpinned judicial treatments of extraterritorial domicile historically, see David J. Bederman,

Extraterritorial Domicile and the Constitution , 28 V A . J. I NT ’ L L. 451, 454–70 (1988).

55 . See Gerhard Dannemann, Martin Wolff (1872–1953) , in J URISTS U PROOTED : G ERMAN -

S PEAKING É MIGRÉ L AWYERS IN T WENTIETH -C ENTURY B RITAIN 441, 445–50 (Jack Beatson &

Reinhard Zimmermann eds., 2004).

56.M ARTIN W OLFF , P RIVATE I NTERNATIONAL L AW 103 (2d ed. 1950).

57. The point here is that the citizenship literature neglects domicile as a legal form of state-based

attachment, and not that domicile alone, or in combination with nationality, is necessarily a perfect

expression of the individual’s identification with a state or states. For instance, under Anglo-Canadian

private international law, an individual must always have a domicile but cannot have more than one.

Mark v. Mark, [2005] UKHL 42, [2006] 1 A.C. 98, 113.

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that individual’s lived attachment to or disattachment from the state in real

time . 58

III

C ITIZENS AND N ONCITIZENS

The formal expansion of access to the civil courts is an important chapter in

the history of citizenship. Some groups lacked the capacity because they were

considered inferior, notably slaves and women, and others were punished by

having it taken away, such as felons and the excommunicated. 59 Whereas most

work on citizenship treats the chapter as closed, this part looks at two private-

international-law scenarios in which access to the courts can be denied: in times

of war (via lack of standing) and under the pressures of illegal migration (via

lack of jurisdiction). In these cases, English judges in particular have made

common-law private international law a respite from, and sometimes even a

commentary on, the strictures of public law.

A. EnemyAliens

If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to

maintain any action, or get any thing within this realm.

- Sir Edwin Coke, Calvin’s Case (1608) 60

In the English 61 and Canadian 62 legal systems, enemy aliens can be sued but

cannot sue. 63 For the duration of a war, they can be wronged without remedy.

Enemy aliens are outlaws—not metaphorical but actual.

In 2005, the English High Court confirmed this rule in Amin v. Brown but

held it did not apply to the plaintiff. 64 Mrs. Amin lived in Iraq and owned a

house in London, which she rented out. 65 The rent was paid to Mr. Brown, an

58. The impact of these private ways of belonging to the state on the public ways of belonging is

beyond the scope of this article.

59 . See Porter v. Freudenberg, [1915] 1 K.B. 857, 882–83 (C.A.).

60. Calvin’s Case, (1608) Co. Rep. 1a, 17a.

61 . See Amin v. Brown, [2005] EWHC (Ch) 1670, [22]. For an overview of the early history of the

rule, see Arnold D. McNair, Alien Enemy Litigants , 31 L.Q. R EV . 154, 154–62 (1915).

62 . See Int’l Ass’n of Sci. & Tech. for Dev. v. Hamza, (1995) 28 Alta. L.R.3d 125, 133 (C.A.)

(dictum). For an overview of the Canadian case law, see A RTHUR J. M EAGHER , P ARTIES TO AN

A CTION 252–60 (1988). The discussion in this section of the article makes reference to Quebec cases

because the question who was an alien in the Province of Quebec was decided under the laws of

England, with the consequences of alienage flowing from French law. See J.G. White Eng’g Corp. v.

Canadian Car & Foundry Co., (1940) 43 Que. P.R. 419, 419 n.1 (S.C.).

63. Discussion here concerns the common-law rule. Royal proclamations, trading with the enemy

statutes, and other executive and legislative acts could also come into play. The discussion also does not

consider article 23(h) of the 1907 Hague Convention on the Laws and Customs of War on Land for the

reason that the English courts considered it applicable only to occupied territory. See Porter , [1915] 1

K.B. at 874–80 (C.A.).

64 . Amin , [2005] EWHC (Ch) at 1670. The judge in Amin , Lawrence Collins, is the general editor

of D ICEY , M ORRIS AND C OLLINS ON THE C ONFLICT OF L AWS , supra note 53. Louis Flannery, Enemy

Aliens and the State of War: Amin v. Brown, 155 N EW L.J. 1480, 1480 (2005).

65 . Amin , [2005] EWHC (Ch) at [2], [5]–[6].

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English solicitor, as agent for Mrs. Amin. 66 Mrs. Amin’s case was that Mr.

Brown had used the rent money to refurbish the house without instruction from

her. 67 In his defense, Mr. Brown did not claim that he was entitled to carry out

works on the house. Instead, he raised several arguments as to Mrs. Amin’s

right to bring the claim at all, including that she had no standing to sue because

she was an Iraqi citizen and therefore an enemy alien. 68 Justice Collins

concluded that this disability of enemy aliens continues to be “part of the rules

of English law relating to the traditional laws of war . . . [but] that there is no

warrant for extending it to modern armed conflict not involving war in the

technical sense.” 69 Accordingly, since he accepted the U.K. government’s

position that its use of force against Iraq was authorized by a combination of

UN Security Council resolutions, Justice Collins held that the United Kingdom

was not at war with Iraq and therefore that Mrs. Amin could not be an enemy

alien. 70

Although Amin establishes that the procedural rule on enemy aliens still

exists, it might also be taken as evidence that the rule will seldom apply.

International law now prohibits what Justice Collins described as “war in the

technical sense.” 71 Accordingly, governments are unlikely to characterize their

recourse to force as war. The Blair government took the position that the

United Kingdom was not at war with Iraq, just as the government of the day

had taken the position that the United Kingdom was not at war in Korea, in the

Falklands, nor, as part of NATO, in the former Yugoslavia. 72 Moreover, Justice

Collins noted that the Crown’s certificate as to the existence of a state of war

involving Her Majesty’s Government is conclusive and binding on the courts. 73

However, even if there is little chance that the rule on enemy aliens will ever

apply again, the rule’s very existence is of concrete importance because it

establishes the parameters of the defensible. Where the rule does not apply, it

may nevertheless inform judgments about what legal disabilities can reasonably

be imposed on other foreigners or even on citizens in other contexts. Are those

in question sufficiently like enemy aliens? Is the context sufficiently like war? 74

66 . Id. at [4]–[6].

67 . Id. at [8].

68 . Id. at [12].

69 . Id. at [46].

70 . Id. at [43]–[47].

71 . Seeid. at [25]–[28] (discussing the meaning of war and the modern law of armed conflict).

72 . Seeid. at [34]–[37], [43]–[46].

73 . Id. at [30]–[31]. But see id. at [39]–[42] (“[E]ven if HMG does not recognise that there is a war

in the sense of the traditional international law, war may still be held to exist for certain purpose.”).

74. For an instance of the analogy between terrorism and war, compare Lord Brooke’s judgment in

the Court of Appeal in A v. Sec’y of State for the Home Dep’t , [2002] EWCA (Civ) 1502, [2004] 1 Q.B.

335, 377–82 (using the treatment of enemy aliens in wartime to demonstrate the reasonableness of

distinguishing between nationals and non-nationals in times of similar public emergency) with Lord

Bingham’s judgment for the majority in the House of Lords, [2004] UKHL 56, [69]–[70], (2005) 2 A.C.

68, 124–27 (appeal taken from England) (rejecting these precedents). See also D AVID C OLE , E NEMY

A LIENS : D OUBLE S TANDARDS AND C ONSTITUTIONAL F REEDOMS IN THE W AR ON T ERRORISM 5, 7–9

(2003) (arguing that in the United States after Sept. 11, 2001, the risk is that the treatment of enemy

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In this light, the rule on enemy aliens has a double significance for

public/private citizenship. As a matter of cosmopolitan form, the relationship

with an enemy alien differs from public to private, as does the definition of

enemy alien. This difference also signifies for cosmopolitan tradition, and hence

for cosmopolitan space.

The violence done by the rule is to place enemy aliens outside the law,

thereby substituting the relationship of “outlaw” for that of equals in the

private, Gaian, sphere of belonging. At the same time, the asymmetry of the

outlaw relationship (can be sued, but not sue) differentiates it from the two-way

cutting of ties in the “enemy” relationship characteristic of the wartime public

sphere. Although the inability of an enemy alien to sue had a long pedigree in

the common law, it was not until World War I that the English courts decided

that an enemy alien could be sued, thereby producing the asymmetry. 75 The

leading authority 76 for the rule is a trio of cases, Porter v. Freudenberg ,

Kreglinger v. S. Samuel & Rosenfeld , and In Re Merten’s Patents , collectively

known as Porter , decided together by a full Court of Appeal in 1915. 77 Prior to

Porter , the ground for the plea of enemy alien was usually related to the

traditional sovereigntist view that a war between two states made all those

owing allegiance to the one state into enemies of all those owing allegiance to

the other. (British and American writers and courts held fast to this view,

whereas a number of continental European jurists and judges preferred the

distinction between combatant and noncombatant traceable to Rousseau’s

Social Contract .) 78 In contrast to the earlier cases, the Court of Appeal in Porter

found that the reason for the rule has become the public policy “which forbids

the doing of acts that will be or may be to the advantage of the enemy State by

increasing its capacity for prolonging hostilities in adding to the credit, money

or goods, or other resources available to individuals in the enemy State.” 79 This

policy footing meant that there was no reason not to allow a British or neutral

subject to enforce a right against the enemy: quite the opposite. Given the lack

of precedent, though, the Court reached for analogy. If the enemy alien

resembles the traitor, the felon, the outlaw, and the excommunicated person in

being unable to sue, then there is no reason that the enemy alien should not

aliens in wartime will provide a template for the treatment of enemy-like individuals in warlike

situations). To the contrary, the contrast between enemy aliens and other categories of aliens may serve

to reinforce the unreasonableness of treating anyone else in that way. The outlaw status of enemy

aliens has figured as a contrast in two major Australian judgments on immigration and refugee law. Lim

v. Minister for Immigration (1992) 176 C.L.R. 1, 19–20; Minister for Immigration & Multicultural &

Indigenous Affairs v. Masri (2003) 126 F.C.R. 54, 83. I am grateful to Rayner Thwaites for his

thoughtful views on the Australian cases.

75. Porter v. Freudenberg, [1915] 1 K.B. 857, 882 (C.A.).

76.L ORD M C N AIR & A. D. W ATTS , T HE L EGAL E FFECTS OF W AR 79–80 (1966).

77 . Porter , [1915] 1 K.B., approved by the House of Lords in Sovfracht (V/O) v. Van Udens

Scheepvaart En Agentuur Maatschappij (N/V Gebr), [1943] A.C. 203.

78 . See W ILLIAM E DWARD H ALL , A T REATISE ON I NTERNATIONAL L AW 86–89 (A. Pearce

Higgins ed., 8th ed. 1924).

79 . Porter , [1915] 1 K.B. at 868.

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equally bear their liability to be sued. 80 Although the Court recognized that

these were cases of misconduct, it stated that it was “at a loss to conceive why

the same liability to be sued should not equally apply to him.” 81

In the result, war both acknowledges and pries away the Gaian dimension of

citizenship in a remarkable way. Implicit in Porter ’s analogy of the outlaw is the

idea that the alien is part of the community; one must belong in the first place

before one can be banished. And by allowing enemy aliens to be sued but not to

sue, the rule on standing does not simply divide legalis homo into friend and

enemy. The private relationship of outlaw is more inclusive than the severing of

ties that the public relationship of enemy represents. It is the half recognition of

the prewar legal relationship, and in an action against an enemy alien, it is the

full recognition because the enemy alien is permitted to defend himself and to

appeal a judgment against him. 82 “While it is to our interest that an enemy

against whom we have a claim should be sued, it is to the interests of justice that

being attacked he should be allowed to defend himself by legal means,” Lord

Justice Scrutton stated in his 1918 lecture “The War and the Law.” 83 The enemy

alien can speak, if only from a position of abjection.

If the relationship of outlaw is more intimate than that of enemy, it also

permits an intimate, personalized form of harm. It is the private individual who

can wrong an enemy alien without remedy during the war; it is the private

individual who can sue an enemy alien without the possibility that he will

counterclaim or claim indemnity against a third party. 84 Mr. Brown’s defense in

Amin was not that he was entitled to carry out works on or to rent out Mrs.

Amin’s house. Instead, he contested Mrs. Amin’s right to bring the claim at all,

including because she was an enemy alien. Enemy aliens are thus consigned to

the mercy not of the state at war with their state but to the mercy of the

individual members of that state. By placing enemy aliens outside the law, the

common law not only prevents the transfer of resources to the enemy alien and

hence to his state; it transforms the legal relationship definitive of the Gaian

conception of citizenship into an economic advantage, even a weapon, in the

hands of the one party and instrumentalizes the courts in the tactic. 85

The common law lessened the rule’s violence, however, by developing a

type of belonging specific to wartime. Just as outlaw is not the same relationship

as enemy, the definition of “enemy alien” in private law turns out not to be the

same as its public-law definition. This public/private distinction is interesting

80 . Id. at 883.

81 . Id.

82 . Seeid.

83. T. E. Scrutton, The War and the Law , 34 L.Q. R EV . 116, 123–24 (1918) (emphasis added).

84 . See M EAGHER , supra note 62, at 259.

85. For condemnation of this feature, see Ex Parte Kawato, 317 U.S. 69, 74 (1942). A similar

preference for the public over the private may explain Justice Collins’s statement in Amin that “[t]o the

extent there is a public policy against enriching a person who is resident in a foreign State with which

there are hostilities, that policy was satisfied in the case of Iraq by the Iraq (United Nations Sanctions)

Order 2000.” Amin v. Brown, [2005] EWHC (Ch) 1670 at [46].

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not only as form, but also because it can be read as a tradition of hospitality in

war.

The wars of the nineteenth century saw the emergence of different tests for

enemy character in the practice of Great Britain and the United States and that

of the continental Europe states. Most continental countries regarded

nationality as the criterion for defining an enemy alien, whether in public or

private matters. In contrast, Great Britain and the United States developed the

notion of “commercial” or “trade domicile” as the test of enemy character for

the purposes of private law. 86 The resulting public/private distinction in the

definition of enemy alien was described by Lord McNair and Sir Arthur Watts

as follows:

If we desire to ascertain a man’s personal rights and liabilities, for instance, whether

he is liable to be interned . . . then nationality is the main test. . . . But if our object is to

ascertain his position as a party to a contract, as a trader, as a litigant, as one with

whom it is desired to have intercourse, personal or commercial, then our main test

becomes his locality in some form or another. Sometimes this test takes the form of

‘voluntary residence’, sometimes ‘the place where he carries on business’, sometimes

merely the place where he happens to be. 87

Commercial domicile differs not only from nationality, but also from the

conception of domicile—“civil domicile”—ordinarily used in private law,

especially private international law. Whereas civil domicile revolves around the

notion of home, commercial domicile is centered on that other private

organizing principle, the market, although it is not limited to actors in the

marketplace. And commercial domicile is more easily acquired and lost than

civil domicile, which is based on some deeper and more enduring sense of

attachment to place. 88

The notion of commercial domicile was developed by admiralty judges such

as Lord Stowell 89 who were confronted in wartime with questions about the

ownership of property seized at sea as prizes. As a part of prize law and the law

of neutrality more generally, the notion of commercial domicile is clearly self-

interested and connected with finding a rule that would strike the greatest blow

to the enemy’s economy. 90 In the context of foreigners within a state at war, the

86 . See,e.g. , Malcolm M. Lewis, Domicile as a Test of Enemy Character , 4 B RIT . Y.B. I NT ’ L L. 60,

60–61 (1923–1924). Although commercial domicile is often declared to be the test, commentators differ

on whether it is the sole test and on how to formulate the necessary degree of attachment. See, e.g. , G.

H.L. Fridman, Enemy Status , 4 I NT ’ L & C OMP . L.Q. 613, 615 (1955). Regardless of whether commercial

domicile best sums up the entire common-law definition of enemy alien in private law, it serves to

highlight what does attract general agreement: namely, that the test is not one of nationality and is

concerned with patent and self-chosen adherence to a state in the context of war.

87.M C N AIR & W ATTS , supra note 76, at 77 (emphasis added).

88 . See Tingley v. Müller, [1917] 2 Ch. 144, 172–75; see also Clive Perry, The Trading with the

Enemy Act and the Definition of an Enemy , 4 M OD . L. R EV . 161, 173–74 (1941).

89 . See H ENRY J. B OURGUIGNON , S IR W ILLIAM S COTT , L ORD S TOWELL : J UDGE OF THE H IGH

C OURT OF A DMIRALTY , 1798–1828, 115–71 (1987).

90 . See Lewis, supra note 86, at 62–63 (discussing disagreement at the Naval Conference of London

in 1908 as to whether the nationality or the domicile of the owner should be adopted as the dominant

factor in deciding whether property was enemy property and noting that one of the arguments made in

favor of the principle of domicile was that it alone permitted striking a blow at enemy commerce).

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significance of using commercial domicile as the test of an enemy alien has

broader overtones because it constitutes a community as opposed to simply

determining the fate of cargo captured at sea, and judges’ distaste for the plea

of enemy alien suggests that they were attuned to this dimension. The evident

dislike of Justice Collins in Amin for the plea of enemy alien echoes that of

many English judges historically. In 1797, Chief Justice Eyre described it as

“one of the harshest, one of the most impolitic, nay immoral defences that ever

was set up in a court of justice.” 91 Finding for the plaintiff in a suit for unpaid

seaman’s wages, he proclaimed that the court would readily adopt a legal

distinction that would allow a man who did his duty faithfully to receive his

reward. 92 Chief Justice Eyre and Justice Rooke distinguished the plaintiff as a

national of a neutral country captured on board an enemy ship, 93 while Justice

Heath rejected the plea of enemy alien because the plaintiff was implicitly

under the King’s protection as a prisoner of war. 94

Private law’s expansion of the “us” can be contrasted with the concern that

in war (and now in the War on Terror), there is a contraction of citizenship and

its protections against one’s own state. In a climate of war, citizenship does not

always prevent denationalization or safeguard naturalized citizens and their

children from internment or discrimination. 95 In comparison, the common-law

construct of commercial domicile shifts the definition of enemy alien and

thereby exempts considerable numbers of enemy nationals and enemy

domiciliaries on English soil from becoming outlaws. And whereas the usual

worry during wartime is unequal scrutiny, the test of commercial domicile

subtracts from and adds to the community of enemy aliens defined by

nationality. As emphasized in the British cases decided during World War I, an

91. Sparenburgh v. Bannatyne, (1797) 1 Bos. & P. 163, 169; see also id. at 170 (Heath, J.) (“this

dishonest defence”); id. at 171 (Rooke, J.) (“The defence has no foundation in conscience, in justice, or

in public policy, and I do not feel disposed to assist it.”). Other examples from the English judiciary

include Casseres v. Bell, (1799) 8 T.R. 166, 167 (classifying the defendant’s plea of enemy alien as “an

odious plea”); J. Dundas White, Trading with the Enemy , 16 L.Q. R EV . 397, 405–06 (1900) (quoting

decisions starting in 1697). For a Canadian instance, see Viola v. MacKenzie, Mann & Co., (1915) 24

D.L.R. 208, 210 (Que. K.B., A.S.) (“[A]ll foreigners, especially among the class of workmen, have been

invited and brought here by ourselves, by our laws, by our statutes; . . . we have even spent considerable

sums to induce them to establish themselves here. . . . It is repugnant for us to believe that . . . a stranger

should be refused the right to demand payment of a just debt.”). In the U.S. context, see Ex Parte

Kawato, 317 U.S. 69 (1942). Because not all judges identify their normative concerns explicitly,

however, it is hard to know whether Justice Collins is inclined to narrow the rule on enemy aliens for

the same reasons as judges in previous periods.

92 . Sparenburgh , (1797) 1 Bos. & P. at 170.

93 . Id. at 169–70 (Eyre, C.J.), 172 (Rooke, J.).

94 . Id. at 171.

95. The French 1915 Act of Parliament providing for the denationalization of naturalized French

citizens born in enemy territory, cited by Giorgio Agamben in “We Refugees,” is a well-known

example of wartime legislation providing for denationalization. See James W. Garner, Treatment of

Enemy Aliens , 12 A M . J. I NT ’ L L. 27, 48 (1918); Giorgio Agamben, We Refugees (Michael Rocke

trans.), European Graduate School, http://www.egs.edu/faculty/agamben/agamben-we-refugees.html

(last visited June 27, 2008). The U.S. government’s internment of 110,000 persons of Japanese ancestry,

about two-thirds of whom were U.S. citizens, during World War II is a vivid reminder in the U.S.

context. See C OLE , supra note 74, at 7.

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enemy national would lose the character of an enemy for as long as he was

residing in the King’s dominions or trading there by license of the Crown, and,

conversely, a British national could lose his friendly or national character for

the time being by residing or trading in the enemy’s dominions. 96

As a matter of form, commercial domicile and civil domicile are not only

distinct from public notions of membership; they reflect the organization of the

private. Westlake offers the interesting genealogical hypothesis that the concept

of commercial domicile as it originated in admiralty law may be “in some

degree referable to the fact that in England the admiralty judges have usually

been also the judges in probate and matrimonial matters, accustomed in the

latter capacity to apply domicile as a criterion.” 97 Over time, commercial

domicile did not keep pace with changes to civil domicile that increased the

necessary fixity of residence. 98 Commercial and civil domicile involve different

organizing ideas of the private: commercial domicile corresponds to the market,

while civil domicile is an expression of the home. In addition, the courts in

wartime deploy another such idea to expand the “us.” In Amin , Justice Collins

noted the patriarchal-style exception to the rule for enemy aliens living in

England by the Queen’s license and under her protection. 99 The implied-

protection exception is exemplified by the World War I cases, starting with

Princess Thurn v. Moffitt , 100 in which enemy nationals resident in the United

Kingdom who had registered under the alien restriction regime were thereby

held to be under the King’s protection and entitled to maintain an action. 101

The private-law imagination thus created an additional overlapping layer of

community in time of war and, hence, a kind of cosmopolitan space on the

homefront. The possibility that an individual could be an enemy in the public

but not the private context and vice versa could produce some odd results. An

English national living in an enemy state might find himself unable to divorce

his wife in England for the duration of the conflict. 102 And in the 1915 case

96 . See Porter v. Freudenberg, [1915] 1 K.B. 857, 868–69 (C.A.).

97.J OHN W ESTLAKE , 1 I NTERNATIONAL L AW : P EACE 206 (1904).

98 . Id.

99. [2005] EWHC (Ch) 1670, [21]–[22]; see also M C N AIR & W ATTS , supra note 76, at 78–116;

M EAGHER , supra note 62, at 255 nn.760–62 (citing Canadian cases).

100. [1915] 1 Ch. 58. In this and other cases, the plaintiff was a woman who had become an enemy

national through the operation of nationality laws that made a wife’s nationality dependent on her

husband’s. See Karen Knop & Christine Chinkin, Remembering Chrystal Macmillan: Women’s Equality

and Nationality in International Law , 22 M ICH . J. I NT ’ L L. 523, 544–46, 557–59 (2001). A feminist analysis of

private international law as citizenship will be pursued in future work.

101. In dicta in Amin , Justice Collins supports two further qualifications of the rule on enemy aliens.

First, he regards the rule on enemy aliens as qualified by its basis in public policy and hence

inapplicable whenever success in the case would not enrich the enemy. Amin , [2005] EWHC (Ch) at

[23]. This may contradict past cases in areas such as tort and divorce in which the plea was raised.

Second, Justice Collins ventures that, even when the enemy would be enriched through private suit,

that might nevertheless not come within the rule where public sanctions were in place. See id. at [46].

102 . Cf. Weiss v. Weiss, 1940 S.L.T. 447 (Outer House) (In an action for divorce brought by an

enemy national in Scotland, the Lord Ordinary raised the question of the pursuer’s title to sue, but

found that he was entitled to sue because he was a Scottish resident and thus did not fall within the

private law definition of enemy alien.).

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Schaffenius v. Goldberg , 103 the German plaintiff was held to be entitled to

enforce a contract with a British national because he had long resided in

England and had duly registered himself under the alien registration regime,

but all the while he was “innocently” interned on the ground that he was of

enemy nationality. 104 The point to stress, though, is that the public/private divide

offers a way of resisting reductive notions of identity and society during

wartime and the accompanying full-scale denial of rights.

A final point is about identity as lived. Because English private international

law contained the possibility of a form of attachment different from nationality

in public international law, it opened the door to the judges to find that an

individual could divide herself, at least in part, from her state of allegiance. Set

against the possibility that an individual cannot change to or from enemy

nationality during wartime, 105 the test of commercial domicile becomes still more

striking. With the outbreak of war, an émigré whose enemy nationality no

longer corresponds to her sympathies may be unable to naturalize in the state

where she lives. Public law thus gives her no guaranteed way to certify her

loyalty to that state. In contrast, commercial domicile allows an individual to

choose against her own state simply by continuing to live where she lives. No

further demonstration of loyalty is demanded; life “as lived” is enough.

B. IllegalImmigrants

Whereas an absence of standing to sue is highly unusual, a lack of

jurisdiction is much less so. In 2005, the same year that Amin was decided, the

House of Lords heard a case involving a Nigerian woman who had overstayed

her leave to remain and was seeking a divorce in England. 106 In Mark v. Mark ,

the House of Lords ruled that Victoria Preye Mark had met the common-law

requirements for domicile, thereby giving the English courts jurisdiction over

her petition for divorce. 107 Rejecting the dicta in Puttick , 108 Mark squarely

103. [1916] 1 K.B. 284 (C.A. 1915). In the Canadian context, see Harasymczuk v. Montreal Light,

Heat & Power Co., (1916) 25 B.R. 252; Fabry v. Finlay, (1916) 32 D.L.R. 673 (Que. Ct. Rev.).

104 . See M C N AIR & W ATTS , supra note 76, at 96–97.

105. The case law has led some authors to conclude that English courts recognize neither an

individual’s power to acquire enemy nationality nor, conversely, an enemy national’s power to

naturalize. Others argue that this interpretation overgeneralizes. For an extensive treatment of the

issue, see P. E. Nygh, Problems of Nationality and Expatriation Before English and Australian Courts ,

12 I NT ’ L & C OMP . L.Q. 175, 183–85, 186–87 (1963). In the context of mass denationalization by an

enemy state, the more recent Oppenheimer v. Cattermole, [1976] A.C. 249, 262, 266, 275, contains

generally worded dicta to the effect that the English courts may refuse to recognize an enemy alien’s

change of nationality during wartime. As Nygh observes, British-nationality legislation implies that

naturalization and expatriation are possible during wartime subject to restrictions. Nygh, supra ; see also

British Nationality Act 1981, ch. 61, § 12(4). Regarding Canada, compare In re Herzfeld, (1914) 46 C.S.

281 (holding that an enemy subject living in Canada during the war had the right to apply for

naturalization) with Re Cimonian, [1915] 23 D.L.R. 363 (Ont. S.C.) (holding that an enemy subject had

no right to naturalization, and that his application would therefore be dismissed by the court of its own

initiative), and see Citizenship Act, R.S.C., ch. C 29, §§ 19–20 (1985).

106 . See Mark v. Mark, [2005] UKHL 42, [2006] 1 A.C. 98. After the proceedings were begun, she

was granted indefinite leave to remain. Id. at 109.

107 . Id. at 117.

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established that a person whose presence in England is unlawful can potentially

acquire an English domicile. The unlawfulness of the presence goes only to the

question whether that person has nevertheless formed the intention to make a

home in England. 109

For both Lord Hope (with three of the four other judges concurring) and

Baroness Hale (with all other judges concurring), the decision in Mark

depended on resurrecting the distinction between private and public

membership in the state. In Lord Hope’s words, “The importance of this

distinction has not always been recognised.” 110 He relied on the following

description of the subject/citizen dichotomy in the 1869 case Udny v. Udny : 111

The law of England, and of almost all civilized countries, ascribes to each individual at

his birth two distinct legal states or conditions; one by virtue of which he becomes the

subject of some particular country, binding him by the tie of natural allegiance, and

which may be called his political status ; another, by virtue of which he has ascribed to

him the character of a citizen of some particular country, and as such is possessed of

certain municipal rights, and subject to certain obligations, which latter character is

the civil status or condition of the individual, and may be quite different from his

political status . The political status may depend on different laws in different countries;

whereas the civil status is governed universally by one single principle, namely, that of

domicil, which is the criterion established by law for the purpose of determining civil

status . For it is on this basis that the personal rights of the party, that is to say, the law

which determines his majority or minority, his marriage, succession, testacy, or

intestacy, must depend. 112

Thus Mark’s status for public purposes was determined by nationality and

immigration law, whereas her status in matters of private law was determined

by domicile. Differentiating civil from political status enabled Lord Hope to

confine the relevance of illegality to the latter. In contrast to Puttick , which

endorsed the proposition that “a court cannot allow a person to acquire a

domicile in defiance of the law which that court itself administers,” 113 Lord Hope

restricted this proposition to public law. 114 Distinguishing the structure of private

law, Baroness Hale reasoned that her view of domicile does not reward

wrongdoing because domicile is a neutral determination that distributes the

law’s benefits and burdens equally. 115

The reasoning of both Lord Hope and Baroness Hale is questionable. Lord

Hope had to do some work in order to distill the private from the public. Not

only did he have to resurrect the strong public/private distinction in Udny circa

1869, but he had to distinguish Roman law on the basis that its concept of

108 . See Puttick v. Attorney General, [1980] Fam. 1, 19, rejected in Mark , [2006] 1 A.C. at 105, 117.

109 . Mark , [2006] 1 A.C. at 106, 117. The House of Lords cited Canadian case law to this effect. See

id. at 115 (citing Jablonowski v. Jablonowski, (1972) 28 D.L.R.3d 440 (Ont. Sup. Ct.); Wood v. Wood,

(1977) 4 R.F.L.2d 182 (P.E.I. Sup. Ct.)).

110 . Id. at 104.

111. (1869) 1 L.R.S. & D. App. 441 (U.K.).

112 . Mark , [2006] 1 A.C. at 103 (quoting Udny , 1 L.R.S. & D. App. at 457).

113. Puttick v. Attorney Gen., [1980] Fam. 1, 19 (1979) (quoting D ICEY AND M ORRIS ON THE

C ONFLICT OF L AWS 96 (J.H.C. Morris ed., 9th ed. 1973)).

114 . Mark , [2006] 1 A.C. at 105.

115 . Seeid. at 115.

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domicilium is not private enough. 116 Baroness Hale’s view that domicile does not

involve an advantage is also questionable. In the Court of Appeal, Lord Justice

Latham was skeptical of this line of reasoning because the petitioner in a

divorce case hopes to obtain an advantage. 117 It is also possible to characterize

access to the civil courts as an advantage being sought.

Why then did the judges in Mark insist on dusting off the nineteenth-century

concept of domicile? The House of Lords could have considered and decided

the case in light of the individual’s right to a fair trial contained in Article 6 of

the European Convention on Human Rights (implemented in the United

Kingdom by the Human Rights Act 1998 ). 118 Indeed, Article 6 was argued in

Mark , and the Court of Appeal discusses Article 6. 119 From this perspective, the

judgment of the House of Lords appears parochial and has been criticized as

typical of the British courts’ failure to realize the importance of human rights in

private international law. 120 However, it is arguably more audacious and radical

for the House of Lords to rest its decision purely on the concept of domicile

than it would have been to use the individual’s right of access to justice.

Reliance on domicile insists that an illegal immigrant who has hoodwinked or

otherwise escaped immigration control is like “us” in making her home in

Britain, rather than invoking a common humanity and bare presence.

What is also striking about the strict treatment of domicile in Lord Hope’s

judgment, and even more striking in Baroness Hale’s, is the account of the

individual’s political status that emerges by contrast with her civil status.

Political status varies with the state, depending on that state’s rules for who may

lawfully enter or lawfully remain there. The criteria for determining domicile

derive from a single principle that, for Lord Hope, “ought to be capable of

being applied universally.” 121 Moreover, a country’s immigration law, and thus

an individual’s immigration status in that country, are changeable—unlike

domicile. Both Lord Hope 122 and Baroness Hale 123 observe that an individual can

acquire an English domicile even if she is not assured of permanent residence,

and she may well retain that domicile even if her residence becomes unlawful.

116 . Seeid. at 105.

117. Mark v. Mark, [2004] EWCA (Civ) 168, [85].

118. Article 6(1) provides: “In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law.” European Convention for the Protection of

Human Rights and Fundamental Freedoms art 6.1, Nov. 4, 1950, 213 U.N.T.S. 221, available at

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais

.pdf. Regarding the impact of Article 6(1) on English private international law, see Fawcett, supra note

3. Presumably Article 6(1), too, requires some account of conditions and limitations on jurisdiction. See

Mark , [2004] EWCA (Civ) at [40].

119 . SeeMark , [2004] EWCA (Civ) at [23], [40], [70]–[71], [73], [75], [87].

120 . See Fawcett, supra note 3, at 34.

121 . Mark , [2006] 1 A.C. at 104.

122 . Id. at 105–06.

123 . Id. at 113–14.

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Baroness Hale can be read as going even further and suggesting the

contingency of the very idea of immigration law. Her judgment begins with a

section entitled “immigration control.” 124 Intriguingly, this section is integrated

into the reasoning only by the initial observation that “[i]t is worth

remembering that the question [of the relevance of unlawful presence for

habitual residence or domicile] could not arise until comparatively recently.” 125

In the section, Baroness Hale evokes a slide from a custom of hospitality to a

rather Orwellian-sounding system of immigration control. “Monarchs did from

time to time seek to expel or exclude aliens,” but, in Blackstone’s words, “[f]or

so long as their nation continues at peace with ours, and they themselves

behave peaceably, they are under the King’s protection.” 126 The regulation of

aliens begins as exceptional—“passed in response to the excesses of the French

revolution” 127 —and eventually becomes routine with the advent of “universal

documentation, telecommunications, a large bureaucracy, and greater powers

to invade people’s privacy within the country than then existed.” 128 Against this

backdrop, domicile appears as the residue of a more organic cosmopolitanism. 129

In Baroness Hale’s judgment, an individual’s domicile also appears as the

legal reflection of her lived experience: “[A] person’s presence here may at

times be lawful and at times unlawful. She may not even know what it is or

think that it matters very much.” 130 In Witkowska v. Kaminski , 131 the English

High Court extended Mark beyond divorce jurisdiction to hold that the

claimant’s unlawful presence in the country was no bar to her ability to invoke

the court’s jurisdiction under the Inheritance Act to make reasonable financial

provisions for her out of the deceased’s estate. 132 Janina Witkowska claimed that

she had lived with the deceased in England as his wife for about five years, 133

even though she had only managed to do so by repeatedly obtaining entry on a

six-month tourist visa and staying on beyond the six months. 134 Following Mark ,

124 . Id. at 106–08.

125 . Id. at 106.

126 . Id. at 107 (quoting 1 W ILLIAM B LACKSTONE , C OMMENTARIES ON THE L AWS OF E NGLAND

259 (2d ed. 1766)).

127 . Id.

128 . Id. at 106–07 (quoting A NN D UMMETT & A NDREW N ICOL , S UBJECTS , C ITIZENS , A LIENS AND

O THERS 39–40 (1990)).

129. What makes this contrast still more intriguing is that domicile itself is often considered a

nineteenth-century invention, emerging clearly only as the “domicile or nationality” debate took shape.

Ronald Graveson calls Udny “one of the leading cases of the first great era of domicile.” Graveson,

supra note 51, at 43; see also de Winter, supra note 51, at 361–77.

130 . Mark , [2006] 1 A.C. at 116. In concluding that lawful residence is also not needed to establish

divorce jurisdiction on the alternative statutory basis of one year’s habitual residence, Baroness Hale

referred to “the large numbers of people who have remained here leading perfectly ordinary lives here

for long periods, despite having no permission to do so.” Id. at 113. The same attentiveness to lived

experience may be found in her decision in R. v. Headteacher of Denbigh High Sch., [2006] UKHL 15,

[2007] 1 A.C. 100 (appeal taken from Eng.).

131. Witkowska v. Kaminski, [2006] EWHC (Ch) 1940.

132 . Id. at [51].

133 . Id. at [8].

134 . Id. at [45].

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the High Court distinguished her sense that she had made a life with someone

in England from the fact that she had never regularized her immigration status

there.

At least in part, then, the unilateral attachment to the state permitted by

domicile rests on Baroness Hale’s implied argument that the contingent need

for immigration control should be confined to its proper sphere and not

interfere with the cosmopolitan private sphere. It also relies partly on her view

that people’s attachment to the state should not simply be judged by their

immigration status, which may come and go, but also by their own mode of

living with or working around that status.

As in the enemy-alien cases, English private international law’s recognition

that the legal form of attachment to the state might divide along public/private

lines results in a tempering of the consequences of nationality and immigration

status. Udny , the nineteenth-century case on domicile followed in Mark , is

interesting in this regard. Both cases deploy the same contrast between

nationality as state-specific rules and domicile as universal or universalizable.

But when Udny was decided in 1869, an individual could not renounce his

allegiance to the Crown, 135 whereas he could change his domicile: 136 “He cannot,

at present at least, put off and resume at will obligations of obedience to the

government of the country of which at his birth he is a subject, but he may many

times change his domicil.” 137 In Mark , it is domicile that is depicted as steady

and immigration status that varies. The constant is the public/private contrast

that produces the possibility of a layered cosmopolitan identity that has gone

unnoticed in the citizenship literature. There is a tendency to assume that

everyone—whether all individuals on the state’s territory or even all

individuals—has civil rights, and then there are graduated rights and benefits up

to citizenship, which comes with the full package. 138 Instead, we see that the link

to the state in private international law cannot be captured in this series of

concentric circles. In the common-law tradition, it is distinctive 139 and

paradigmatically based on some version of the private, whether the home, the

market, or the will of the patriarch. While it thus carries with it the familiar

135 . See Border & Immigration Agency, Home Office, Renuniciation (History), at 1,

http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nisec2ge

nsec/renunciation?view=Binary (last visited Feb. 7, 2008). The common-law position was altered by

legislation in 1870. See id. Although naturalization into the nationality of a foreign power did not divest

an individual of British nationality and, in fact, amounted to treason, P.E. Nygh argues that courts did

not regard such naturalization as a nullity, treating it instead as giving rise to dual nationality. Nygh,

supra note 105, at 182–83.

136 . Udny clarified that change of domicile did not demand a change of allegiance. (1869) 1 L.R.S.

& D. App. 441 (U.K.).

137 . Id . at 452.

138. B OSNIAK , supra note 2, at 122–23 (To a greater or lesser degree, all citizenship scholars

understand membership as a series of concentric circles.).

139. Interestingly, Michelle Everson argues that the “deep” concept of U.K. citizenship (citizenship,

that is, in the familiar public sense) should be seen as a more earthy and less state-centered one that has

been challenged by modern developments. Michelle Everson, ‘Subjects’, or ‘Citizens of Erewhon’? Law

and Non-Law in the Development of a ‘British Citizenship’ , 7 C ITIZENSHIP S TUD . 57 (2003).

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potential of the private sphere for violence and oppression, it also recognizes

the expression of individuality and sociality not channeled through the state.

IV

M ULTICULTURAL C ITIZENSHIP

This part brings the notion of public/private citizenship to bear on

multicultural, or group-differentiated, citizenship and religious immigrant

minorities. It compares the familiar paradigm of differentiated citizenship with

the one derived from private international law. After illustrating how private

international law can exhibit a greater cultural cosmopolitanism, this part

concludes with the suggestion that the technicality of the private-international-

law form generates a complex and operationalized analysis of issues central to

differentiated citizenship, public as well as private.

As discussed earlier, most writers on citizenship begin with the picture of

the sovereign state found in public international law, but depart from it in order

to incorporate the effects of economic globalization, supra- and subnational

institutions, mass migration, refugee flows, and other phenomena of

interdependence on the boundaries of community and membership. 140 This same

blurring of the picture also directs attention to issues associated with

differentiated citizenship: the appropriate recognition for immigrant ways of life

(rights to religion and culture), questions of respectful engagement with the

“other” (judging and speaking across cultural divides), and how to do justice to

hybrid identities (intersectionality).

The law of public membership grants or withholds recognition to

immigrants’ personal relationships at the point of entry, as when immigration

law decides whether marriage in the immigrant’s country of origin is valid for

the purpose of family reunification, or refugee law decides whether a marriage

can be construed as forced marriage for the purpose of refugee status. Once in

the country, the legal vehicle for recognizing other systems of personal law is

primarily human rights: the constitutional or international rights of individuals

belonging to minorities and rights of minorities as groups. The central question

for this multicultural citizenship is usually framed in terms of culture or religion

versus liberal values such as equality.

A similar tension arises in private international law when, for example, the

norms of the immigrant’s state of origin conflict with those of her new state in

cases such as marriage, divorce, and inheritance. Through its rules on

recognition of foreign judgments and choice of law, private international law

generates its own version of multiculturalism for immigrant, transmigrant, and

other communities within the state. 141 Ruba Salih’s work on Moroccan migrant

140 . Seesupra II.B.

141. There are, of course, differences between multicultural citizenship and the version produced

through the operation of the rules of private international law. In the first place, multicultural

citizenship is concerned with nonstate law, such as religious law, whereas private international law deals

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women in Italy illustrates the relevance of private international law to the lived

experience of multiculturalism. 142 The women Salih interviewed construct a

home that spans Italy, where they live for most of the year, and Morocco, where

they return each summer. Her study discusses the ways that private

international law, along with the sociology of transnationalism, produce these

women’s differentiated position within Italian society. For Moroccan spouses in

Italy, Italian private international law refers questions of personal status to the

laws of Morocco unless the applicable Moroccan law is judged to be a threat to

public order or a violation of human rights as defined by the European

Convention on Human Rights. 143 In addition, Moroccan women marrying in

Italy are mindful of the requirements of Moroccan marriage laws and customs

because compliance is necessary to the legal and social realities of returning to

Morocco. 144

Whereas the public-law design of multiculturalism in western states starts

with the equality of the individual and builds out to take account of group-

based difference in these terms, 145 private international law proceeds in the

opposite direction. As the example of Moroccan women in Italy indicates,

private international law in these states begins with respect or tolerance for

group-based difference and asks when that is fundamentally incompatible with

individual equality. In Anglo-Canadian private international law,

incompatibility is dealt with primarily through a public-policy exception to

choice of law and recognition of foreign judgments.

If citizenship experts have scarcely glanced at private international law,

activists and indeed states have become more attentive to its sociological

potential to diversify a society internally and to forge a kind of exteriorized

multiculturalism by joining it to certain other states through routine transborder

social practices. To cite an instance of diversifying, when the movement for

same-sex marriage in the United States seemed stalled, advocates organized a

“get on the bus” campaign that enabled gay and lesbian couples to go to

Canada to marry and then bring test cases in the United States to have their

with the laws of other states. If the state of origin delegates questions of personal status to religious law,

the difference may not be significant. If, instead, the state of origin’s laws reflect the dominant religion

or seek to codify other religions, it is important to differentiate religious law from religiously based

state law and also to keep in mind that not all immigrants will be from that dominant religion. Second,

the issue for multicultural citizenship is most often whether to permit individuals to enter into certain

relationships, while the issue for private international law is how to deal with existing relationships or

with existing laws that permit them. From these differences between multicultural citizenship and its

private-international-law counterpart, it follows that both weigh liberal values in the balance, but not

necessarily against the same thing. For multicultural citizenship, it is a right to religion or culture on the

other side of the scales, whereas private international law might use comity among states or the harm

that would be done to the parties in an existing legal relationship by recognizing or not recognizing the

relationship in the state of immigration.

142 . See Ruba Salih, Toward an Understanding of Transnationalism and Gender , in G ENDER AND

H UMAN R IGHTS 231 (Karen Knop ed. 2004).

143 . Id. at 244.

144 . Id. at 244–45.

145 . See K YMLICKA , supra note 11, at 87–108.

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Canadian unions recognized under the rules of private international law. Even

as those cases failed, they forced a continuing encounter with the (foreign) legal

fact of actual same-sex marriages as opposed to the general political question. 146

Moreover, the Israeli Supreme Court’s judgment allowing a Canadian same-

sex couple to be registered as married in Israel highlights the existing

phenomenon of “Cyprus marriages,” whereby going to Cyprus to get married is

a routine way for Israelis to circumvent the requirement of religious marriage.

The Israeli Supreme Court has upheld the effectiveness of the practice of

Cyprus marriages. 147 Here, private international law in essence outsources a

multiculturalism that was unachievable domestically. As a multicultural state,

Israel is joined to Cyprus. Similarly, members of religious immigrant

communities often return to their or their parents’ state of origin to marry,

thereby exteriorizing multiculturalism and effectively making their state of

origin into part of their new (multicultural) state through the routine operation

of the private international law rules on recognition of foreign marriages. 148

In Ontario, an unsuccessful proposal 149 to include Muslim personal law

among the religious laws used to arbitrate family- and inheritance-law cases

under the provincial Arbitration Act was prompted in part by a concern among

Muslims in Canada that a divorce obtained in Canada would not be recognized

if they moved to a Muslim country. 150 Here again, it is the private that permits

the construction of a transnational Muslim legal space.

While the sociological effect of private international law on states of

immigration can be to produce a kind of multiculturalism, irrespective of

whether that state guarantees the rights of minorities, this effect depends on

what the rules on recognition and choice of law are. Consider a couple that

enters into a certain type of marriage in a state where such marriages are legal

and then immigrates to a state that prohibits them. The validity of the marriage

arises in the new state, whether in the context of sponsoring the immigration of

family members where immigration law invokes private international law, or in

some private-law context such as support or inheritance. If the state of

immigration has choice-of-law rules that refer the validity of the marriage to the

law of the parties’ intended domicile after the marriage, then private

146 . See Brenda Cossman, Migrating Marriages and Comparative Constitutionalism , in T HE

M IGRATION OF C ONSTITUTIONAL I DEAS 209, 221–25 (Sujit Choudhry ed., 2006).

147 . See Aeyal Gross, Israel’s Supreme Court Orders Registration of Same-Sex Marriage

Conducted in Canada, 2006 L ESBIAN /G AY L AW N OTES 226, 226, available at

http://www.nyls.edu/pdfs/ln0612.pdf.

148 . See infra note 163 and accompanying text. The perspective of the state of origin or the

destination state is a separate question worth pursuing.

149 . See M ARION B OYD , D ISPUTE R ESOLUTION IN F AMILY L AW : P ROTECTING C HOICE ,

P ROMOTING I NCLUSION (2004), http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/

fullreport.pdf; Ontario Premier Rejects Use of Shariah Law , CBC N EWS , Sept. 11, 2005,

http://www.cbc.ca/story/canada/national/2005/09/09/sharia-protests-20050909.html (last visited June 27,

2008).

150 . See Shariah Law: FAQs , CBC N EWS , May 26, 2005, http://www.cbc.ca/news/background/islam

/shariah-law.html (last visited June 27, 2008).

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international law does not have a heterogenizing effect because it holds the

parties to the same family law as everyone else in the state. Then again, if

immigrants split their time between the new state and the old, judges might be

open to the possibility that they retain their domicile of origin for some time. 151

In comparison, a choice-of-law rule on the validity of marriage that relies on the

parties’ antenuptial domicile would recognize an immigrant’s existing marriage

even if such a marriage would not be possible in that state. Finally, if the state

of immigration has a choice-of-law rule that says the validity of a marriage

depends only 152 on the law of the place of celebration, the state enables still

greater diversification. In addition, with transmigration, migrants and even their

children may return to their state of origin to marry, making the effect of the

private-international-law rules not transitional but continuing. And as the

registration of “Cyprus marriages” and now same-sex marriages in Israel

suggests, a pure lex loci celebrationis rule has a heterogenizing effect that goes

beyond immigrant and transmigrant communities.

Although the spatial effect of private international law can be

diversification, this is not necessarily the aim. Respect or tolerance for

difference might instead be a byproduct of comity among states or concern for

the position of vulnerable members of a family who would otherwise be

deprived of the protections offered by a legally recognized union or parental

relationship. The example of foreign polygamous marriages in England and

Canada suggests, however, that there is also increasingly a cosmopolitan

tradition at play. 153

The generally accepted Anglo-Canadian common-law rule is that the

validity of a marriage depends both on the law of the place of celebration,

which applies to the formalities, and on the law of each party’s antenuptial

domicile, which determines capacity to marry. Traditionally, even if a

polygamous marriage satisfied both these choice-of-law rules, it was not

regarded as valid. In the 1866 case Hyde v. Hyde , 154 Sir J.P. Wilde (later Lord

Penzance) held that an English divorce court could not recognize a Mormon

marriage because there was evidence that polygamy was part of Mormon

doctrine and was the custom in Utah. 155 It made no difference that the actual

marriage was monogamous. “[M]arriage, as understood in Christendom, may

for this purpose be defined as the voluntary union for life of one man and one

151 . See,e.g. , Prakash A. Shah, Attitudes to Polygamy in English Law , 52 I NT ’ L & C OMP . L.Q. 369,

386 (2003).

152. Some states use a combination of choice-of-law rules. See the discussion of Anglo–Canadian

private international law infra .

153. The example of polygamy is used to compare the public and private sides of multicultural

citizenship and is not intended as a stand on the practice. For an overview of polygamy and its impact

on women, see A NGELA C AMPBELL ET AL ., P OLYGAMY IN C ANADA : L EGAL AND S OCIAL

I MPLICATIONS FOR W OMEN AND C HILDREN . A C OLLECTION OF R ESEARCH P APERS (2005), available

at http://www.swc-cfc.gc.ca/pubs/pubspr/0662420683/200511_0662420683_e.pdf.

154. (1866) 1 L.R.P. & D. 130 (U.K.).

155 . Id. at 131.

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woman, to the exclusion of all others.” 156 Since Hyde , English courts (and

similarly Canadian courts) 157 have come to recognize polygamous marriages for

many purposes, including barring a subsequent monogamous marriage in

England; matrimonial relief; legitimacy of, and succession by, children; and

succession by wives. 158

Although the post- Hyde jurisprudence on polygamy may be attributable in

part to comity and in part to concern for vulnerable family members, 159 there are

also indications that judges have been responsive to the increasing cultural

diversity of their societies. 160 A notable example in this progression is the 1983

case Hussain v. Hussain , 161 which involved a marriage in Pakistan, the law of

which permitted polygamy, between a Muslim man domiciled in England and a

Muslim woman domiciled in Pakistan. 162 The English Court of Appeal rejected

the argument that the marriage was potentially polygamous and therefore void,

recognizing that the acceptance of this argument would have repercussions for

the Muslim community in England that would be “widespread and profound,”

since many Muslim men domiciled in England returned to the country of their

birth to find a bride. 163 Commentary has shown that the Court’s interpretation of

the relevant legislative provision was narrower, and hence more multicultural,

than Parliament intended. 164 To judge from Prakash Shah’s account of the

English law’s attitudes toward polygamy as they developed in response to

different phases of African and Asian immigration, the Hussain episode is

156 . Id. at 133.

157. The following discussion will concentrate on English law. There are some differences between

English and Canadian law. For the Canadian position and a comparison between Canadian and English

law, see Martha Bailey et al., Expanding Recognition of Foreign Polygamous Marriages: Policy

Implications for Canada 6–16, in C AMPBELL ET AL ., supra note 153 .

158 . See 2 D ICEY , M ORRIS AND C OLLINS ON THE C ONFLICT OF L AWS 835–57 (Lawrence Collins

ed., 14th ed. 2006); J.H.C. M ORRIS , T HE C ONFLICT OF L AWS 216–28 (David McClean & Kisch Beevers

eds., 6th ed. 2005).

159 . See, e.g. , Hassan v. Hassan, (1976) 12 O.R.2d 432, 438 (H.C.) (referring to “[t]he tragic and

inequitable results that follow the application of the principle in Hyde”). C.f. Angela Campbell, How

Have Policy Approaches to Polygamy Responded to Women’s Experiences and Rights? An

International, Comparative Analysis , in C AMPBELL ET AL ., supra note 153, at 1, 30 (arguing that greater

recognition of the rights and obligations flowing from foreign polygamous marriages often serves the

state’s interest by limiting its responsibility for vulnerable family members and placing the obligation of

support on the spouses).

160 . See Sebastian Poulter, Hyde v. Hyde—A Reappraisal , 25 I NT ’ L & C OMP . L.Q. 475, 491–503

(1976).

161. [1983] Fam. 26 (1982).

162 . Id. at 30.

163 . Id. at 32–33. On the importance of this case for the Muslim community in England, see Rhona

Schuz, When is a Polygamous Marriage Not a Polygamous Marriage? , 46 M OD . L. R EV . 653, 654–55

(1983). The Court of Appeal held that, even though the marriage was celebrated in polygamous form, it

was not polygamous because neither party had capacity to take more than one spouse by the law of his

or her domicile. That is, English law did not allow the man to take another wife, and the law of Pakistan

did not allow the woman to take another husband. The court’s reasoning was seen as overingenious in

that the decision would have been different had the woman been domiciled in England and the man in

Pakistan. The judgment and its aftermath reflect the interplay of legislature and courts, Parliament, in

its turn, passing new legislation to remedy this discrimination. See M ORRIS , supra note 158, at 222–23.

164. Schuz, supra note 163, at 656–57.

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illustrative of the greater cosmopolitanism of the courts and tribunals relative to

the legislature. 165 As Shah tells the story, the courts’ post–World War II efforts

to reconcile their traditional disdain for polygamy with demands for justice by

new migrants were punctuated by statutory reforms aimed at assimilation. In

turn, courts responded by using private-international-law techniques to mitigate

the effects of such legislation.

Thus far, this part of the article has shown how the technicalities of private

international law allow for and have been used to create a greater

multiculturalism on the private side of citizenship, sometimes, as Shah shows, in

direct response to its public side. In closing, this part further suggests that the

technicalities in and of themselves are a way to think through key issues of

multiculturalism on the public side of citizenship as well as on the private.

Central to theorizing multicultural citizenship are concerns about how best

to understand culture and how best to engage with individuals (often women) in

other cultures, especially with an eye to effecting change. Among

multiculturalists, feminists, postcolonialists, anthropologists, proponents of

deliberative democracy, and others, opinion has increasingly converged on an

understanding of culture as dynamic rather than static, internally contested

rather than monolithic, and contextual rather than simply rules. 166 This has

opened up explorations of hybridity in both an analytic and a normative vein. In

addition, literature on cross-cultural dialogue has pressed us to recognize

ourselves as likewise culturally situated. 167 This awareness problematizes

assumptions such as that western women have agency and nonwestern women

do not. 168 Similarly, the recognition that our culture too is contingent is seen to

create a climate for mutually beneficial dialogue between cultures that pushes

past superficial comparisons between “us” and “them.”

These themes—culture as dynamic, internally contestable, and contextual,

hybridity, cross-cultural dialogue, agency—can all be found in private

international law. Let us return to the example of a couple who marries in their

country and then immigrates to a country that does not permit this kind of

marriage. Assume that the choice-of-law rules in the state of immigration direct

the judge to the state of origin’s law, but make an exception whenever that law

is contrary to public policy. The public-policy question is not just whether the

old state’s laws on marriage differ from the new state’s, but whether they are

165 . Seegenerally Shah, supra note 151.

166 . See, e.g. , S ALLY E NGLE M ERRY , H UMAN R IGHTS AND G ENDER V IOLENCE : T RANSLATING

I NTERNATIONAL L AW I NTO L OCAL J USTICE 11–16 (2006); Madhavi Sunder, Piercing the Veil , 112

Y ALE L.J. 1399 (2003).

167 . See,e.g. , U MA N ARAYAN , D ISLOCATING C ULTURES : I DENTITIES , T RADITIONS , AND T HIRD -

W ORLD F EMINISM 81–117 (1997); Leti Volpp, Feminism Versus Multiculturalism , 101 C OLUM . L. R EV .

1181 (2001).

168. On this tendency, see, for example, Ratna Kapur, The Tragedy of Victimization Rhetoric:

Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics , 15 H ARV .

H UM . R TS . J. 1 (2002); Saba Mahmood, Feminist Theory, Embodiment, and the Docile Agent: Some

Reflections on the Egyptian Islamic Revival , 16 C ULTURAL A NTHROPOLOGY 202 (2001); Volpp, supra

note 167, at 1211–12.

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offensive to the fundamental values of the new state’s law. 169 How different is

too different? This is the same dilemma as for theories of multicultural

citizenship. But whereas private international law begins with acceptance of the

other state’s potentially illiberal laws, multicultural citizenship starts with liberal

values. It is fairly evident that both processes of analysis get to the “how

different is too different” question. What is not apparent is that private

international law gets there through a series of technicalities, and these

technicalities bring an immediate complexity and detail that multicultural-

citizenship theory must generate from first principles—and seldom arrives at.

Proof of foreign law is a good example. 170 Where a choice-of-law rule points

to foreign law, private international law also determines whether the court

applies that law automatically and how the foreign law is established. 171 In

German private international law, for instance, the court itself refers to the

foreign law and uses its own experts to determine what that law is. 172 In Anglo-

Canadian private international law, the parties must plead choice of law and

prove the foreign law as a fact through the introduction of expert evidence. If it

is not pleaded or if it is pleaded but not proved, then the forum’s law is

applied. 173 While the common-law approach to proof of foreign law has been

criticized by private international lawyers, its value for multicultural citizenship

lies in the agency it gives the parties to reject, to define, or to modify the

religious or religiously influenced norms of their state of origin on an issue-by-

issue basis. 174 They might not argue choice of law at all. Or instead they might

agree on an understanding of the foreign law, perhaps on a particularly

progressive or antiprogressive view of it. Yet another possibility is that the

parties might choose in their own way to supplement the old state’s legal

practice to produce a hybrid that satisfies both the old state’s requirements and

the new state’s values. A current example from Europe is the recognition of

foreign religious divorces in which the old state’s rule is based on the husband’s

consent alone, and the wife’s consent is demonstrated to the satisfaction of the

new state’s private international law. 175 This possibility returns to the idea of

169. Thepublic-policy question can be absolute (is the foreign law’s content repugnant to public

policy?) or contextual (is the result of applying the foreign law in a given context contrary to public

policy?). See A DRIAN B RIGGS , T HE C ONFLICT OF L AWS 44–46 (2002). Although only touched on in

this article ( infra note 179 and accompanying text), private international law’s analysis of public policy

in these separate senses, particularly in the contextual sense, is another example in which the

technicality of the analysis offers an existing textured approach to issues of multicultural citizenship.

170. Renvoiisanother. See Knop, Michaels & Riles, supra note 22, at 35–36.

171 . See generally Maarit Jänterä-Jareborg, Foreign Law in National Courts: A Comparative

Perspective , 304 R ECUEIL DES C OURS 181 (2003).

172 . Id. at 272–73, 289–91.

173. 1D ICEY , M ORRIS & C OLLINS , supra note 53, at 255–69; 1 J ANET W ALKER , C ASTEL &

W ALKER C ANADIAN C ONFLICT OF L AWS 7.1–7.12 (6th ed. 2005).

174. This might be appealing when the parties belong to a religious minority in their state of origin

and the state’s law is based on the religion of the majority.

175 . See Marie-Claire Foblets, The Admissibility of Repudiation: Recent Developments in Dutch,

French and Belgian Private International Law , 5 H AWWA 10, 15–16, 17–20, 22–23, 25–26, 27, 31–32

(2007).

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cosmopolitan space, the prospect of immigration here potentially diversifying

the state of origin.

In addition to the themes of agency and hybridity, proof of foreign law

relates to culture as internally contestable and to the potential for outsiders to

engage with and support internal dissent within cultures. The private-

international-law aim is to find out what the foreign law really is. From a

perspective of multicultural citizenship, however, the competing expert

testimony brings home the internal contestability of the law and thereby that of

the underlying religion or culture. Furthermore, because the testimony goes to

the foreign law in context, it brings with it the subtleties of institutional

solutions rather than simply transmitting the rules. This is particularly

important when foreign courts resort to institutional process to add nuance to

controversial hard-line religious rules, but outsider observers tend to criticize

these rules in isolation. Indeed, for the new state, this is an opportunity to dispel

stereotypes of certain foreign laws or religions. 176

A last point about proof of foreign law relates to respect for the “other.”

Since foreign law is a question of fact to be ascertained through expert

testimony, the judge cannot presume to interpret or apply the foreign law. 177

This is a cautionary tale about understanding other cultures, a form of respect,

as is the fact that the court’s decision has no precedential value either for the

foreign jurisdiction or for the meaning of the foreign law in the court’s

jurisdiction. 178 The encounter with the other community does not presume to

change its norms; the alternative is not to apply them.

Coming back to the “how different is too different” question in light of how

foreign law is pleaded and proved, we can now see that if the common-law

judge ultimately does invoke public policy as an exception to choice of law, it is

only after having heard what alternative interpretations are available within the

foreign legal system, perhaps even reflecting them in judicially crafting the

exception. Moreover, the public-policy analysis also involves a comparative

exercise akin to cross-cultural dialogue: the judge must interrogate her own

community’s laws to determine whether the conflict is deep-seated and

fundamental, or superficial and belies an underlying similarity. Finally, the

judge may approach the conflict in the abstract or the concrete (the rule in

general or these parties in particular), which may further open up possibilities

for cross-cultural dialogue. For example, polygamy in general may be

oppressive to women, but an existing polygamous union between particular

parties may not be. 179 Judging the concrete may thus turn out to refine the

176 . See Mohammad Fadel, German Judge and Legal Orientalism , Mar. 26, 2007,

http://archive.eteraz.org/user/mohammadfadel/diary (last visited June 27, 2008).

177 . Butsee Nils Jansen & Ralf Michaels, Die Auslegung und Fortbildung ausländischen Rechts , 116

Z EITSCHRIFT FÜR Z IVILPROZEß 3 (2003).

178 . Butsee id.

179. On the abstract versus concrete approach in the context of dissolution of a marriage abroad

based on the husband’s unilateral request, see Foblets, supra note 175.

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analysis of polygamy in the state of immigration. In concept and in practice,

then, private international law proves, surprisingly, to be a kind of dislocated

experimental space that might open other possibilities for contestation.

V

C ONCLUSION

Thus, we should approach private international law as the private side of

citizenship. An immediate reason is that private international law covers some

of the same terrain. In particular, like postnational citizenship and

differentiated citizenship, it addresses both the divide between citizen and

noncitizen and the position of religious immigrant groups. A second reason is

historical. Private international law reacquaints us with Pocock’s legalis homo :

the legal citizen as someone who could sue and be sued, and someone who

belonged to a community of shared or common law that was not necessarily a

territorial community. Private international law has particular value as private

citizenship in a post-9/11 world because its treatment of enemy aliens, illegal

immigrants, and members of religious immigrant groups and other minorities

offers us examples of actually existing cosmopolitanism within the common law.

Finally, separate from these legal traditions and the sociological spaces they

produce, the value of private international law for citizenship lies in its store of

technicalities through which we can think about cosmopolitanism on the public

side of citizenship as well.