Rationalising Mid‐Century Choice of Law: Legal Technique and its Limits in the ‘Dark Science’ of Conflicts

Abstract

Under the common banner of a search for a ‘more rational’ approach to choice of law, US conflict‐of‐laws scholars of the late 1950s and the 1960s produced an impressive array of new technical instruments for their discipline. This article situates their work in the broader contexts of innovations in the social‐ and behavioural sciences and in legal‐ and political theory of this period. On this contextual reading, the methodological clashes of the so‐called ‘choice‐of‐law revolution’ change in shape and become part of a much larger story – one with relevance also outside the discipline and beyond the United States. That story is about different degrees of faith in the capacities of technical instruments and practices, like legal doctrine, to manage and resolve conflict, by making disparate factors commensurable, and by affording outcomes that optimise all competing interests in play. By revisiting these mid‐century battles over conflicts methods in light of contemporaneous understandings of ‘rationality’ and ‘legitimacy’ in other fields, the article contributes to our understanding of the genealogy of post‐war choice of law, as well as of the history of these ideals – and their technical means – in modern legal thought.