The colonial origins of public international law are increasingly front and center of scholarly and political discussions in the field. In her insightful essay, Anne-Charlotte Martineau suggests that the supposed “private” nature of private international law also derives, in part, from extractive European colonialism. More often known as conflict of laws in the common law world, private international law governs the resolution of transnational disputes, focusing on issues such as jurisdiction, choice of law, and enforcement of judgments. Martineau recounts that from the middle of the sixteenth century, scholars of the so-called School of Salamanca—the intellectual movement led by Francisco de Vitoria that developed at the university of Salamanca in Spain—were mobilized to legitimize and facilitate enslavement and other violent practices by reconceptualizing the law of marriage.
Martineau’s piece is published as part of a symposium on the interrelation of the public and the private in international law, inspired by the work of late Canadian international law scholar Karen Knop. Martineau’s contribution constitutes a manifesto in its own right, calling for comparative and international law practitioners and scholars “to redress the invisibility of women in the history of international law” from an intersectional perspective. She builds upon Knop’s claim that “recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law” to revisit a debate that arose in the 1540s. Jesuit missionaries in Brazil asked jurists and theologians associated with the School of Salamanca back in Europe to assess the validity of marriages among colonized peoples such as the Tupi people and among enslaved persons. The motivation was initially religious—if these unions were illegitimate under canon law, for example because they were consanguineous, polygamous, or temporary, spouses could not be baptized and converted to Catholicism. In the 1580s, the impetus became primarily economic and biopolitical—as sugar production prospered, European colonizers demanded an ever-growing workforce to exploit. The issue became whether enslaved people kidnapped from Angola and Indigenous people captured in the hinterland (sertão) to work on plantations could enter into second marriages given that they had been forcibly separated from their consorts back home.
Martineau recounts that the juridical and theological answers heavily relied on conflict of laws reasoning, resulting in a special, ad hoc law of marriage. She points out that jus gentium, the customary law thought to be held in common by all peoples or nations at the time, “was set aside” in favor of natural law and a version of canon law fitted to imperial needs. Papal dispensations were obtained to allow, among others, for marriages between first cousins. Pope Gregory XIII himself intervened in 1585 to proclaim, “the papal power of dissolving marriages of unbelievers ‘if necessity urges.’” This capacity was delegated to missionaries, who could annul the marriages of “enslaved Brazilians and Africans who were ‘unable to communicate’ with their first spouses.” In theory, remarriage was framed as an exemption only valid for the colonies and inconceivable on European soil. And yet Martineau points out the influence of the colonial construction of marriage on “jurists and theologians of the peninsula,” who developed gendered arguments about whether spouses could stay married if they were enslaved wherever they might be. She notes that a leading Portuguese Jesuit proposed a different regime for men and women, arguing that a “man can sell himself and keep his wife,” but a woman lacks the same right because she cannot escape “her husband’s commands.”
Martineau’s work illuminates the history of private international law as a body of law that entrenches power structures, reproducing racial and gender hierarchies despite its apparent neutrality. It also carries urgency on a planet where migration is a fact of life due to structural and conjunctural factors, from labor migration to displacement attributable to violence and war. More people than ever give birth, adopt children, marry, divorce, enter into contracts, and die far from their country of birth. In this mobile and multicultural world, conflict of laws structures our relationships to one another, shaping, in particular, the status of persons and families as well as contributing to existing social hierarchies. Martineau’s musing raises the question of which people, practices, and relationships are valued and protected by private international law. According to Ivana Isailović, “many questions at the heart of the discipline . . . allocate privilege and wealth based on gender,” such as such as “the recognition of foreign divorces and marriages,” “the regulation of the global market for reproductive services” and “how the imposition of Western family and gender norms in colonial spaces have historically shaped Empires.” In a similar vein, Horatia Muir-Watt has suggested that private international law should be reclaimed to develop a more inclusive model of differences, which she dubs a “law of inter-alterity.” Martineau’s penetrating article shows that challenging the supposed private nature of the field is an important step in this direction.
