The identification of social pathologies and the projection of utopian alternatives for personal and social transformation that would counter and heal the effects of unjust societies, are a common thread in the works of Taylor, Honneth and Ricoeur, cited above. 8 The elements of the debate can be found in Recognition or Redistribution? A Political-Philosophical Exchange (Verso 2003), co-authored by Axelle Honneth and Nancy Fraser. 9 Legal « translations » of the recognition concept within the democratic state(on which, see too, in France, the work of Pierre Rosanvallon, La légitimité démocratique, cited above), directly linked to the influence of Habermas on critical social theory, are discussed notably within the field comparative constitutionalism, which has given rise to significant developments in the United States ( Kahn, Paul W., ʺComparative Constitutionalism in a New Keyʺ (2004). Faculty Scholarship Series.Paper 324. http://digitalcommons.law.yale.edu/fss_papers/324).The intensity of interest and controversy in the United States may also be due to not only to the wider space occupied by identity politics, but to the fact that justice as recognition (rather than distribution) is notably opposed to the influential theory of

1 recognitionwithin the law,

Fundamental rights and recognition in private international law

par Horatia Muir Watt, Professeur à Sciences Po, Ecole de droit Summary : This article attempts to respond to the question of the editors of this journal, on the implications of fundamental rights and recognition for private international law. It suggests that the paradigmatic transformations which are taking place in post-modern thought in the name of recgntion within the social sciences, have implications for the law which are already apparent in contemporary theories of justice and democracy. In particular, recognition comes with an epistemology and a critical project which may mean that, in the end, there is little that is specific to « international » legal cases ; few grounds on which to distinguish the public (international) from the private (international) as distinct legal disciplines ; and no real sense in separating the need for recognition as a matter of individual experience or collective transmission. It is likely that the changing fault lines within the law, which are already at work to transform the idea and effects of sovereignty in public international law, will lead to an analogous rethinking of the way in which law governs personal relationships in multicultural -including crossborder -settings. In order to track the demands that recognition is making of the law in the later context, this article begins by examining the focus of the current doctrinal debate on recognition, which concerns the frontiers of the conflict of laws as method. It then explores the deeper epistemological and axiologial implications of recognition, which are brought within private international law through the gateway of human rights. In this light, it seeks finally to show that recognition can also be seen as excavating an unfinished project of methodological pluralism.

Introduction.

From the perspective of a sociology of knowledge, the contemporary emergence of a neo-Hegelian 1 vocabulary of sweeping in from other disciplinary fields 2 , the minoritarian 6 . In this function, recognition is aperformative concept, is no doubt par of a more general response to the widespread perception of crisis and the correlative quest for philosophical,or utopian,refoundation 3 . In moral and political philosophy, sociology, anthropology, psychoanalysis and social psychology, recognition is associatedwiththe turnfrom redistributive to identitarian politics 4 . Concern for social and economic inequalities has to a large extent been overtaken (or taken over ?) by a new focuson collective and individual dignity, through which it is proposed to give voice within the (domestic or global) community, to the Other 5 -the different, the discriminated, or psychoanalysis (Donald Winnicott). Equally foundational is the critical social theory of the Frankfurt school (of which he is the continuator), which Honneth relates in turn to Foucault's critique of power (The Critique of Power: Reflective Stages in a Critical Social Theory MIT Press, 1993). The influence of Habermas' critical social theory is also very present in the contribution of French philosopher Paul Ricoeur (The Course ofRecognition, trans. David Pellauer. Cambridge, MA: Harvard University Press, 2005). In sociology, the quest for recognition has been hailed as "a new total social phenomenon" (see A. Caillé, La quête de la reconnaissance, nouveau phenomène social total, Paris, la Découverte, 2007). In political theory, the recognition concept is discussed in relation to theories of justice and democracy, specifically "proximate democracy " or démocratie de proximité" (see Pierre Rosenvallon, La légitimité démocratique. Impartialité, réflexivité, proximité, Le Seuil, Essais, 2008, p. 277 ; in English, Democratic LegitimacyImpartiality, Reflexivity, Proximity (translation Arthur Goldhammer), Princeton University Press, 2011).It is also at the core of anthropological scholarship (often at work in international law: v. E. Jouannet, Qu'est-ce qu'une société international juste? Le droit international entre développement et reconnaissance? Pédone, 2012, p. 167 et s.; an English version of this work is forthcoming in 2013). 3 On the turn to utopia in times of crisis as an issue of sociology of knowledge, see J.M. Vincent, "La lecture symptomale chez Althusser, in Sur Althusser. Passages, in Futur antérieur, Harmattan, 1993, p.128. Disenchantment of modernity (and its turn away from religon) is also a central topic in the reflection of Charles Taylor (see, for ex., A Secular Age, Belknat Harvard, 2007). See too, disenchantment and societal reactions to the perceptions of crisis of democracy, Pierre Rosenvallon, La légitimité démocratique.., p. 56. 4 This move is famously critiqued by the feminist philosopher Nancy Fraser in « Rethinking Recognition », in New Left Review, n° 3, May-June 2000. Her feminist critique also extends, by the same token, to Foucault's normatively neutral stance on power, which inhibits attempts to identify and resist inacceptable forms of domination (Unruly Practices: power, discourse and gender in contemporary social theory, Cambridge: Polity Press, 1989). 5 The move to obtain recognition through voice within the community may be part of a Hegelian social struggle (Honneth), or a dignitarian aspiration towards universalism born of the disenchantment of modernity (Taylor). 6 Or the subaltern: in the international arena, subaltern critique expressed in the name of those who are socially, politically, and geographically outside of hegemonic colonial or post-colonial power structures, stems from similar objection as that of Nancy Fraser as to the way in which recognition, operating on the level of the symbolic, works to distract from issues of economic exploitation and redistributional issues (See Gayatri which belongs the realm of the symbolic. Common notional threads are a phenomenology of the suffering induced by the social denial of individual or collective worth, and the acceptance of the universal human need for self-esteem 7 . It is closely associated, therefore, with values of reciprocity, altruism and pluralism in a multicultural society. The distributional effects of such a move are controversial, however, to the extent thatstructural social-political categories and correlative claims for economic inclusion may well be losing visibility under the (arguably) easier, or less costly, cover of the ethical category of culture 8 . Moreover, identitarian politics inevitably leave open crucial questions of legitimacy, both in respect of the identification of authority to recognize and the exclusive effects of recognition of some, while not of others.

2. While debates about recognition thriveacross the Atlantic in connection with theories of justice 9 ,they are-somewhat paradoxically, given their Hegelian or Foucauldien heritage -only gradually gainingground in the European legal field 10 . However, in this latter context,both as a discourse and a process11 , recognitioncertainly encountersstronger implicit political resistance to communitarianism and identitarian politics, and runs up against very different practices and understandings of democracy,equality or indeed justice itself 12 . It may well be, too, thatmuch of the critique in the United States draws upon a post-structural heritage, which, straddling the disciplinary divide between law and philosophy, is (again paradoxically13 ) untapped in Europe,where,the academic practice of the law still tends to stear clear of interdisciplinary mixes14 . Thus, in France for example, while recognition has been brought into the limelight within social and political theory,orin moral and political philosophy15 ,there is little apparent interest among native lawyers for the topic, with the quasiexception of recent reflection in the field of philosophy of lawon historical harms and the duty of memory 16 .Strikingly, however-and whereas North-American debate onrecognition tends to occupy the domestic scene -recognition seems to have founda quite remarkable opening in Europe, in international law. significance, at least in Eur 3. Interestingly, too, the concept has made its way into this latter field on parallel,and mutually indifferent,tracks in the public and private spheres. This simultaneous development is once again a reason to question the sense of the public/private divide in international law, and may well (as will be discussed below), constitute an opportunity for a constructive conversation across the current schism 17 . In public international law, the claim has recently been made by Emmanuelle Jouannet that recognition could be the most promising candidate for a refoundation of the discipline, as gearedto the establishment of a fair and decent international society 18 . While clearly normative, this thesis calls to witness the content of the most recent post-colonial « generation » of cultural rights, which have opened space in the international arena for collective identitarian concerns 19 . Furthermore, the spectacular spread of the post-colonial idea of reparation for historical wrongs 20 provides concrete expression to the idea thatbeyond financial compensation, the symbolic recognition 21 of past harms suffered by a group by reason of its specific characteristics (gender, race) or shared beliefs (whether religious or racial or sexual), may be the only way to break the chain of intergenerational transmission of perceptions of inferiority.Such ideas obviously call for a sophisticated articulation of the relationship between recognition and economic development, and are indeed criticised, along familiar lines, by subaltern studies, for allowing neo-liberal international economic law to govern distributional issues unchecked 22 . 4. In private international law, the idea of recognition has been given ope 23 , by Paul Lagarde 24 . In a nutshell, the 21 The recognition considered here, rather than that of the individual perpetrator of his or her crimes (through criminal law), is by international community at large, for example through its judicial institutions. 22 These can either be seen as distinct functional regimes participating in the muchcriticized fragmentation of international law, as competing paradigms of the latter. 23 This particular debate has not generated much interest in the United States (probably) for the triple reason that : the conflict of laws no longer does, generally ; the issues which give rise to interaction or competition between private international law idea is that personal relationships25 created elsewhere, under a foreign law (and according to a potentially different understanding of their meaning and content), should be given a place (within the society and under the law of the forum) as such, respecting their specific, initial characteristics 26 . Here, the potential implications of recognition may well be less immediately perceptible than in the discipline's public international counterpart. Indeed, the vocabulary of recognition has international has been the always been central to the conflict of law27 -encompassing vested rights, judgments, public acts, personal status and, now under the influence of European Union law, « mutual recognition »; moreover, traditional concern for the understanding of the « foreign » has always existed, at least in the discourse of the discipline, so thatunder cover of a common signifier, there is a tendency to assume substantive similaritybetween the conventional goals of private international law as « management of pluralism »28 with more recent, collectively identitarian or individually dignitarian, forms of recognition 29 . Futhermore, form and substance30 in this field have always been kept tightly separate, so that the focus of the ensuing debate has been essentially methodological 31 ; the site of ideological disagreement within the discipline has been, not the politics or the values encapsulated in recognition, but the impact on private international law of human rights, through which the courts have given it effect, and thereby replaced or displaced more traditional tools.

The judicial impetus for thismethodological unsettling of private

ECtHR 32 ,and more recently the ECJ to the 32 To a large extent the private international law issues were anticipated by the national courts. Thus, for instance, once the right of trans-sexuals to accede to achange of civil status had been recognized by the 36 The difficulties encountered in respect of Convention rights were linked to the concrete ways in which the tools of private international law in the forum (defendant) State worked out in the circumstances of the case, but neither inter-country adoption by a single mother (Wagner), nor the child's double name (Garcia Avello) raised a fundamental contrariety to public policy of the type which would later be encountered in the Mennesson case (v. infraFN 48). social sciences 40 , have im been identified as involving a new methodology implementing the imperative of recognition.

6. Whatever the forms or expressions of recognition on either side of the public-private international law divide, it is both heralded or challenged as providing, one the one hand, a credible explanation of contemporary mutations within the fieldor, on the other, a convincing normative foundation for a renewal of its perspectives and methods.In each sphere, changes simultaneously taking place in the name of recognitionarenow also unquestionably linked to the discourse of fundamental rights 37 .However, the specifically doctrinal content of the discipline of private international law raises questionswhich may not arise in exactly the same way as do the potentially paradigmatic transformations 38 on the other side of the international legal looking-glass. Moreover, therespective understandings of the content and architecture of those rights through which recognition operatesmay differ considerably. Indeed, it seems that, for the moment, recognition in private international law is perceived largely as a competing, and opposing,methodological approach to individal transborder relationships, for which traditional tools have had to make room due to the direct vertical and horizontal effects of hard-core human rights instruments. This contrasts with the emphasis placed on the axiological dimension of recognition on the side of public international law, where efforts tend to focus on a quest for meaning within a more heterogeneous web of collective rights 39 . 7. This article, then,attempts to respond to the question of the editors of this journal, on the implications of fundamental rights and recognition for private international law. It suggests that the paradigmatic transformationswhich are taking place in post-modern thought in the plications for the law which are already 37 This does not mean that recognition in private international would necessarily have to pass through human rights discourse. See for example, Daniel Gutmann's analysis of the "recognitive function" of private international law (Le sentiment dʹidentité, op citFN 29), which does not use human rights as a basis but appeals directly to individual dignitarian and communauty identitarian concerns. Nevertheless, the courts appeal naturally to he instrument which provides both the most visible and the most mandatory legal basi for following this path. t s 38 E. Jouannet, op cit, p.167. 39 See for instance, the specific evolving mix of practice, soft-law, textual reinterpretation and political philosophy that goes into the public international law of cultural rights, see E. Jouannet's account, op cit., p.174 et s. 40 We are not asking here whether law is or is not a social science (see Geoffrey Samuel, ʺIs Law Really a Social Science? A View from Comparative Lawʺ, Cambridge Law use of a discriminating connecting factor which is at stake here 42 -apparentin contemporary theories of justice and democracy 41 . In particular, recognition comes with an epistemology and a critical project which may mean that, in the end, there is little that is specific to « international » legal cases ;few grounds on which to distinguish the public (international) from the private (international) as distinct legal disciplines ; and no real sense in separating the need for recognition as a matter of individual experience or collective transmission. It is likely that the changing fault lines within the law, which are already at work to transform the idea and effects of sovereignty in public international law, will lead to an analogous rethinking of the way in which law governs personal relationships in multicultural -including crossborder -settings. In order to track the demands that recognition is making of the law in the later context, this article will begin by examining the focus of the current doctrinal debate on recognition, which concerns the frontiers of the conflict of laws as method (I). It then explores the deeper epistemological and axiologial implications of recognition,which are brought within private international law through the gateway of human rights (II).In this light, it seeks finally to show that recognition can also be seenas excavating an unfinished project of methodological pluralism (III).

I-Recognition as method : the current debate

8. Concerns for individual and collective dignity and identity, associated in other disciplinary fields with the recognition paradigm, have made a recent entrance into private international law through fundamental rights. This contact has been the source ofconsiderable friction, when, for the first time during the 1990s and from the dual perspectives of economic freedoms and human rights, the use of traditional legal tools by the courts in crossborder cases was judged to contravene European Union or Convention lawrespectively.It is not the Journal, 2008, vol. 67, n°2, p. 288-321). It is however notable that some of the most interesting pluridisciplinary discussions on contemporary theories of justice (for instance from the perspective of gender) do not include lawyers (see for example, Sous les sciences sociales, le genre, La Découverte, 2010, ed. by D. Chabaud-Rychter, V. Descutures, A.-M. Devreux, E. Varikas, some of the contributions to which will be cited below). 41 On which, see Pierre Rosanvallon, La Légitimité démocratique, op cit. 42 Unlike much of the debate which arose over the constitutionality of (functionalist) conflict-of-laws approaches in the United States during the 1990s, to the extent that they deviated from the use of territory as connecting factor within the federal system (see Douglas Laycock, "Equal Citizens of Equal and Territorial States: The rights in Wagner 47 . It is only with the Mennessonsaga 48 involving the although the inevitable issue of the relationship between discrimination and differentiation of personal status on the basis of foreign nationality or residence arose in the recent Harroudj case 43 and will no doubt resurface in the future. Neither do these instances act out a vertical or horizontal conflict 44 of fundamental rights -although, here again, the jury is still outon this point in the case of crossborder child abduction 45 . And while it is clear that much of the hostility tofundamental rights in private international law is linked to the content of the rights invoked 46 , no fundamental public policy issue is necessarily involved in the violation, whichis characterizedeven in the absence of a direct collision between a fundamental right and a conflicting value protected by the national forum. It is the lack of protection-through the operation of private international law rules -given to the effective parent-child relationshipwhatever its content that is considered to violate Convention Constitutional Foundations of Choice of Law", 92 Colum. L. Rev. 249 (1992) and our analysis in "Aspects économiques du droit international privé", Recueil Cours Académie Droit International, t307, 2005, §192 s.). 43 Harroudj v. France (n° 43631/09, 4 Oct. 2012). The ECtHR ruled that refusal of permission for a French national to adopt an Algerian baby girl already in her care under the Islamic-law form of guardianship (ʺkafalaʺ), on the grounds that adoption was prohibited by the child's personal status applicable under the Fench choice of law rule, did not violate the Convention right to a family life. 44 On conflicts between two fundamental rights, see infra § 27. 45 See, showing a clash between EU objectives of procedural expediency and the ECtHR's protection of the interests of the child, see ECJ. legal effects of surrogacy that recognition of a foreign relationship has been linked to the acceptance of the alien -here, in the sense of not only different but unwelcome -content of foreign law in the interests of the child49 . 9. This may explain why, in the cases identified as exemplifying a new approach based on« recognition », the tension between fundamental rights and private international law is perceived to be essentially methodological 50 . Thus, the focus of the academic debate has been on the displacementby recognition of thelinedividing the respective scope of the method of determining the applicable law (conflict of laws stricto sensu) and the legal requirementsfor the enforcement of foreign judgments 51 . In French legal literature, the current modelowes much to the influential ideas of Pierre Mayer on the distinction between rules and decisions in private international law 52 . According to his argument, the method of the conflict of laws, which means determining the governing law by means of a connecting factor among innumerableprivate law rules all virtually applicable, is relevant every time the issue before the court is governed by (general, abstract) rules (of private law) 53 , as opposed to (individual) decisions (of which the protype is a judgment), which call either for recognition within the forum legal order, or refusal (for reasons of lack of jurisdiction or public policy). The second methodology is perceived to be more liberal, or more facilitative, since it does not condition legal effects of the foreign judgment upon compliance or conformity with the forum choice of law rule. In practical terms, then, this re-formulation of the respective methodological scope of the conflict of laws (related to choice between rules) and recognition of decisions led to reallocating certain issues from one category to the other -more specifically, the topical issue of the effect to be afforded to post-independance expropriations or nationalizations were moved under the latter, less restrictive,regime applicable to foreign decisions 54 .

13 foreign relationships creat choice of law rules in thei 10. While the distinction between rules and decisions for the purpose of determining the relevant methodology raised a first set difficulties in the case of foreign public acts without any substantive decisional content which were difficult to classify as being one or the other (celebratory acts of religious bodies distinct from the state 55 ; quasipublic acts of registrars, etc 56 ),the binary model managed to hold until the arrival on the scene of fundamental rights. Hitherto, giving effect to ed elsewhere had meant using the forum r « recognitive function » 57 . However, after 53 These are virtually in unlimited supply since the assumption is that in every legal system, there is always a rule of private law which is potentially applicable (by virtue of the completeness of the legal order, whose lack of prescription on any point should be read as signifying that no causal relationship exists between a set of facts and a claimed legal consequence). This supposes in turn a structural distinction between private and public law : when the State is involved in the terms of the relationship (does this citizen qualify for French citizenship ?), there is only one possible source of governing law. 54 This meant that the nationalization by Algeria of a French ex-colonial company did not require looking for the applicable law under existing connecting factors for corporate issues -an approach which courts had used until then, with disastrous results. See Civ. respect as an « eclipse of bi Wagner, the right to a normal family life under artice 8 meant recognising a relationship already effectively constituted elsewhere ; « social reality » prevailed henceforth over the legal requirements of the choice of law rule 58 . Applied to civil partnerships, for instance, this line of reasoning mandates that an effective relationship registered elsewhere should be acknowledged and produce the legal effects attached to such relationships in the forum country 59 ,even if this would run contrary to the law governing the partners' personal status,under the forum's conflict rule 60 . Moreover, for want of consensus on the appropriate connecting factor for same-sex partnerships, there is a tendency in comparative private international law to consider that a public officer or authority which is ask to register or celebrate such a partnership will also be applying its own law. In other words, as long as there is a sufficient jurisdictional link (usually through current residence,social environment or « milieu de vie » of either party), each authority will by-pass conflict of law methodologies and apply its own law, while the relationship once created will be afforded recognition elsewhere. An author has aptly described the change taking place in this laterality by authority » 61 . 58 The Court took the view that the decision not to declare the judgment enforceable did not take account of « social reality ». The family ties created by the full adoption granted in Peru could not take full effect in Luxembourg. As a result, the applicants encountered obstacles in their day-to-day lives and the child did not enjoy the legal protection which would enable her to fully integrate into her adoptive family. It is to the extent that the Wagner case refused the detour by the forum's choice of law rule in order to ensure the recognition of a foreign adoption, that is was seen as implementing a new approach. 59 This may generate difficulties of adjustment or "transposition "between the foreign partnership and the effects attached to it under forum law. See (among many) Ch. s amboukis, "La renaissance-métamorphose de la méthode de reconnaissance", P R evue critique de droit international privé 2008 p. 513 ;

60 At a time when the status of such unions was still highly controversial (notably because they were authorized between persons of the same sex), ICCS Convention n° 32 (Convention sur la reconnaissance des partenariats enregistrés, Munich 5 septembre 2007: no official text in English) introduced a principle of recognition of partnerships registrered in other Contracting States (article 2) and of their civil effects (article 3), allowing for only limited exceptions (article 7: including public policy, but excluding any reference to the forum's conflict of law rule). The ICCS/CIEC is an intergovernmental organisation whose aim is to facilitate international co-operation in civil-status matters and to further the exchange of information between civil registrars. 61 11. Recognition then came to be theorized with a « mode d'emploi » designed to fit these new developements among existing methods [START_REF] Lagarde | La reconnaissance mode dʹemploi[END_REF] . When a relationship had been « cristallised » by the intervention of a public authority [START_REF] Mayer | La reconnaissance en droit international privé[END_REF] , the juridiction of which was conditional upon an adequate connection with the applicant(s), then that relationship could be accepted as such within the forum without prior recourse to the forum's choice of law rules. In this context, debate now focuses, firstly, on whether a « purely factual » relationship (such as a common law marriage or a de facto partnership), should be subjected to the same methodology 64 ;secondly, on whether the object of recognition in such circumstances is the factual situation, the law under which it grew up, or the relationship as thus formed [START_REF] Bollée | Lʹextension du domaine de la méthode de reconnaissance unilatérale[END_REF] ; thirdly on what type of link is required of the authority which claims to create a relationship which potentially produce effects abroad [START_REF] Bureau | [END_REF] .Moreover, the issue of the level of tolerance of forum public policy arises here. The public policy exception, which is usually available to eject a foreign law when its content leads to anoutcome that is judged to be undesirablein the light ofcurrent societal values, switches tradtionally into in a mitigated or « attenuated » mode when confronted with a judgment (a vested right) created outside the jurisdiction on which the parties may have placed their reliance [START_REF]Outcomes similar to those obtained under the French theory of attenuation of public policy are reached under the German theory of Inlandsbeziehung, see N. Joubert, La notion de liens suffisants avec lʹordre juridique (Inlandsbeziehung) en droit international privé[END_REF] . The issue here is the extent to which the relationship GP Romano, « La bilatéralité éclipsée par lʹautorité. Développements récents en matière ʹétat des personnes », d R evue critique de droit international privé 2006 p. 457 created abroad, without any decisional input from a public authority, must nevertheless benefit from the more liberal regime.

12. Therefore, while the focus of the debate is mostly doctrinal or methodological, there is far more ideology to the opposition than first meets the eye. Beyond the way in which the dividing line is drawn as between recognition and the conflict of laws (or the method of determination of the applicable law), the stakes are the impactof the new methodology in cases where it might be applied to relationships not protected, and indeed rejected,by domestic law. The example of the ostensibly doctrinal debate over the treatment due (within a prohibitive forum) to foreign civil partnerships, which began to be opened to samesex couples in the 1990s, is once again topical in this respect. The political objection, then, to the enlarging the scope of recognition methodologycomes in a form familiar to federalism debates 68 :giving effect to relationships between foreigners which would not be allowed domestically (same-sex marriages, sex-changes, surrogacy arrangements) will inevitably erode domestic policy restrictions, thereby raising issues of local democracy 69 . 68 M. Rosen, « Extraterritoriality and Political Heterogeneity in American Federalism », 150 University of Pennsylvania Law Review 856 (2002). 69 This is true, too, of course, under the exception of public policy regime. Thus, over time, by virtue of the "attenuated" effet of public policy, relationships involving the clash of societal values (as between the forum and a foreign legal system, generally that of the common nationality of the parties) such as divorce, divorce by mutual consent, polygamous marriage…have been allowed to produce their legal effects within the forum This was at one point the case, too, with respect to the effect of muslim repudiations (which usually took place abroad, in the couple's country of origin) on women living in the forum state. The foreign repudiation was considered as ending the marriage and the wife was left on her own with little financial protection. In other words, in this « intersectional » conflict of values, deference to other cultural practices overrode the gender equality issue. However, the entry into force of Protocol n° 7 du 22 November 1984 (Article 5) to the European Convention of Human Rights was then considered as mandating the reverse solution. The (adjudicatory) jurisdictional link to the forum (domicile of the family) automatically satisfied the (prescriptive) jurisdictional requirement under article 1 of the European Convention, bringing the dispute squarely within the ambit of the repudiated spouse's right to equality Revue critique de droit international privé 2004 p. 423, P. Hammje fundamental rghts 13. However, in Europe, the human rights dimension of such situations adds a further twist to this debate, to which we shall now in turn in the following section. While, as in the Wagner case, huùan rights may mandate recognition of effective foreign family relationships, these may also impose substantive changes upon domestic law, overriding any local policy objections. This double, simultaneous effect of fundamental right is illustrated in the transgender case discussed below. Moreover, human rights operate in a similar fashion, necessarily claiming the same reach, whether the relationship has originated elsewhere, or within the forum state.The crucial issue then becomes the identification of the jurisdictional link which, by virtue of article 1 of the European Convention, legitimates imposing European values on relationships also connected to third countries. This looks familiar -much like a form of neo-statutism70 . While such implications of human rights might represent a new swing of the methodological pendulum -a characteristic of private international law according to its most popular historiography -, they may run far deeper. For indeed, the recognition concept also hasfar-reaching epistemological and axiological implications.

II. The epistemology and values of recognition : the prism of

Rejet des répudiations musulmanes Cour de cassation (1 re Ch. civ.). -17 février 2004, D. 2004, p. 824, concl. F. Cavarroc, p. 815, chron. P. Courbe, AJ famille 2004, p. 140, obs. S. David, RTD. civ. 2004, p. 367, obs. J. Marguénaud One analysis of this development is to consider that the courts have introduced flexibility into the operation of public policy to that the extent that it has absorbed human rights values, so as to allow full effect to such values when the relationship of the parties to the forum is close enough that it is likely to develop there. This is the concept of « public policy of proximity ». An alternative analysis is to consider that the same result is imposed by the right itself, which defines its own « reach » under the jurisdictional requirement of article 1. Much of the discussion of human rights in private international law has therefore been related to the ways in which the traditional modes of operation of public policy should be articulated with fundamental rights, each of which claims its own scope. See Petra Hammje, "Droits fondamentaux et ordre public", R 1 evue critique de droit international privé 1997 p.

clear and uncontested evid 14. While the methodological debate described above is linked to the resettling of categoriesand dividing linesperceived to be central to the understanding of the discipline, a highly significant, yet less visible, part of the challenge raised by fundamental rights is that they implynew epistemological foundations for the treatment of individual cases.In turn, this change is driven by values of reciprocity and respect for alterity, whichhave significantimplications in terms of the perception of the relationship between the Self and the Other, the forum and the foreign 71 . Such transformations are rarely identified from within legal practice. However, they come to light in when viewed through the lenses of the various other disciplines which, in dealing with alterity, are now increasingly adhering to the recognition paradigm. Identity politics, psychoanalysis or moral philosophy show how recognition both contextualises and de-centers.

15. In the field of human rights, which as we have seen, arguably overlaps in many cases with private international law, the vocabulary of recognitioncorresponds to the use of a specific epistemology, which challenges the traditional binary distinction between facts and law. This vocabulary is to be found, emblematically, in the European Court of Human RightsChristine Goodwin case in 2002 72 . Here,theCourt abandoned its previous, prudentpositionon the legal status of transgendered persons,and considered that the refusal by the United Kingdom to give civil effect to post-operative sex change in the particular case of Christine Goodwin,represented a failure to respect her right to private life in breach of Article 8. Having defined the claim itself in the language of recognition ("The applicant complained about the lack of legal recognition of her post-operative sex in the United Kingdom"), the Court uses the same wording to explain why the time had come for change. Thus it considered "significant that the condition had a wide international recognition for which treatment was provided. It was not convinced that the inability of the transsexual to acquire all the biological characteristics took on decisive importance. There was ence of a continuing international trend in classifications 75 . Finally, it m favour of not only increased social acceptance of transsexuals but also of legal recognition of the new sexual identity of post-operative transsexuals".

16. The Court then goes on to identify the suffering which lack of recognition has induced. The way in which it does so avoids framing the legal issue in terms of discrimination (non-discrimination is not a "stand-alone" right under article 14 of the ECHR), but, side-stepping a tricky comparison(people whose gender is unaligned on their biological sex are deprived of equal treatment), uses the more radical idea that dignity is denied through refusal to give legal effect to sex change, per se.

In doing so, it links recognitive identity politics andacontextual asssessmentof individual situations. Thus, "a serious interference with private life also arose from the conflict between social reality and law, which placed the transsexuals in an anomalous position in which they could experience feelings of vulnerability, humiliation and anxiety". The Court links the contextualised individual experience ofeveryday humiliation, and the symbolic stimatisationof a group, putting to use insights from psychoanalysis and social psychology that are similarly very present in public international legal recognition claims73 . 17. It can be seen here that the epistemology of recognitionbrings about a reversal of perspective in legal reasoning, in three important respects.

All of these can be attributed to a turn away from the formal rationalityof the law 74 in favour of open-textured and deliberative normative modes, sensitive to the life experiences with which it interacts. One the one hand, the law is responding to individual, contextualized perspectives. On the other, it is no longer perceived as a set of abstract principles, based onbinaries, distinctions and ay herald, or at coincide with, an increasing seen as expressing an individual, contextualisedneed for recognition; at awareness of the politics inherent in -any, including legalmethodology, particularly when it is designed to deal with difference. Each of these three changes requires in turn some further explanation.

18. i)Thus, the first change is the introduction of "standpoint", in a vein which has become significant within the social sciences 76 . "Normatively, care ethics seeks to maintain relationships by contextualizing and promoting the well-being of care-givers and carereceivers in a network of social relations. Most often defined as a practice or virtue rather than a theory as such, "care" involves maintaining the world of, and meeting the needs of, ourself and others. It builds on the motivation to care for those who are dependent and vulnerable, and it is inspired by both memories of being cared for and the idealizations of self. Following in the sentimentalist tradition of moral theory, care ethics affirms the importance of caring motivation, emotion and the body in moral deliberation, as well as reasoning from particulars. One of the original works of care ethics was Milton Mayeroff's short book, On Caring, but the emergence of care ethics as a distinct moral theory is most often attributed to the works of psychologist Carol Gilligan and philosopher Nel Noddings in the mid-1980s. Both charged traditional moral approaches with male bias, and asserted the "voice of care" as a legitimate alternative to the "justice perspective" of liberal human rights theory. Annette Baier, Virginia Held, Eva Feder Kittay, Sara Ruddick, and Joan Tronto are some of the most influential among many subsequent contributors to care ethics".

knowledge 82 . Much work on the same time, her struggle for individual identity intersects with the collective need of the stigmatised group. The law sets the scene, therefore, for a "struggle over needs" 78 , which tends to de-naturalize dominant interpretations and categories, along new identitarian lines. Social theory shows that these lines are not intangible; group identity may be subject to intersectionality so that individuals within one group (women) may cumulate other factors of discrimination (colour, age, sexual orientation); indeed, power relations (and the correlative need of recognition of subordinate or excluded groups) may cut cross various categories in different ways (some women, after all,may also be senior corporate executives). Whatever the conundra of identity politics, the emergence within the law of the perspective of the Other -seen as "unique, with a body, a history and emotions" -is as a significant a turn as within the ethics of communication. Indeed, Habermas' own work reflects the changing perception of law, whichfrom being a force in favour of "reification", becomes the medium through which deliberations in the real world are brought within the system 79 . "Le droit se trouve désormais dans le camp du monde vécu" 80 . By joining the side of life experience,itlegitimates its "intrusion within the sphere of the intimate" 81 .

19. ii)The second change, which is closely correlated to the first, is the perception of law itself which accompanies the recognition concept.Standpoint theory introduces relativity and contextuality in the place of absolutes and universals;once again, law as understood within the recognition paradigm is no longer an abstract form of (rule-based) this point comes from critical feminist and presented as being purely methodological -and thus instrumental or gender studies, which haveemphasised the gendered (masculine) character of liberal rationality, along with its claims of objectivity and scientificity 83 . Postmodern, critical sociologyrejects general and "totalizing" categories of social history 84 . This is the work that recognition is also doing within the law,where the great liberal axes and binaries -public and private; domestic and international -are already giving way to various pressures. In this respect, the concept of human rights has itself changed, evolving from a list of rights to the expression of a "democracy of proximity" 85 87 Interestingly, the terms is used by social scientists to denote nation-state centered thinking, and then used by compartatists to denote ethnocentric perspectives. On the first, see, Wimmer, A. and Glick Schiller, N. (2002), "Methodological nationalism and beyond: nation-state building, migration and the social sciences". Global Networks, 2: 301-334.doi: 10.1111/1471-0374.00043. In this article, "methodological nationalism is understood as the assumption that the nation/state/society is the natural social and political form of the modern world". On the second approach, see below, next FN. neutral -legal toolsdesigned to apprehend and structure the relationship between the self and the other, between the forum and the foreign, inevitably nevertheless reflect and project value judgements. The epistemology described above involves a de-centering, whichcan bring to light the ways in which the other is often framed with reference to one's own self-image, and reduced to sameness(or exoticized, as will be seen below). Theawareness of the « politics of method » -that is, the politics behind the neutral appearance of methodological tools -has been gaining prominence in new approaches to comparative law [START_REF] Frankenburg | CriticalComparisons: Re-thinking ComparativeLaw[END_REF] where classical ways of thinking difference or otherness share much in common with private international law. Classifications of different national laws in terms of legal « families » have been shown to reflect and perpetuate a value judgment in terms of the relationship between the centre and the periphery. Significantly, for instance, according to René David's well-known taxonomy, which has exercised considerable influence over Western comparatism, the main legal « families » are civil (Roman-Germanic) law, common law, communist (« socialist ») law, and then, fourthly, the « religious and traditional » rest [START_REF] David | The book has since been re-edited many times[END_REF] . The latter category presumably includes the Islamic legal tradition and other cultural practices to be found beyond the confines of Western Europe. Comparative legal analysis then focussed almost exclusively on differences 90 between the two « main » categories, whose importance was hypertrophied to the point that other cultural practices of law were to all intents and purposes disqualified as such.

21. However, at the same time as it rejects the tendency of classical legal thought to reduce the other to one's own image, thisshift also represents a radical reaction against essentialization of beings and cultures. Here, recent critical thinking in comparative law has incorporated ideas from third world and subaltern studies, highlighting postcolonial representations of the « Rest » and their accompanying economics. Remarkable examples are Edward Saïd's workon orientalism 91 , or ackowledgment of the dign Teemu Ruskola's analysisof the fetichization of the exotic 92 . Otherness, then,appears to be primarily a construction,carryingnot only politics of identity but also a certain understanding of history. More positively, the philosophical, psychological and ethical implications of recognition are that respect for the Other is the avenue towards the construction of Self 93 . This can be traced to Habermas' « communicative ethics », geared to the inclusion of Otherinsofar that « everyone tests the acceptability of a norm, implemented in a general practice, also from the perspective of his own understanding of himself and of the world » 94 . In a similar vein,Charles Taylor includes among the « Sources of Self », the social respect for group identity 95 . In France, Paul Ricoeur makes the similar claim that there can be no achievement of the dignity of Self without ity of the Other 96 . 94 The inclusion of the Other. Studies in Political Theory. Jürgen Habermas. MIT Press, 1998, defining thus communication ethics: " As a child of the eighteenth century, Kant still thinks in an unhistorical way and consequently overlooks the layer of traditions in which identities are formed. He tacitly assumes that in making moral judgments each individual can project himself into the situation of everyone else through his own imagination. But when the participants can no longer rely on a transcendental preunderstanding grounded in more or less homogeneous conditions of life and interests, the moral point of view can only be realised under conditions of communication that ensure that everyone tests the acceptability of a norm, implemented in a general practice, also from the perspective of his own understanding of himself and of the world ... in this way the categorical imperative receives a discourse-theoretical interpretation in which its place is taken by the discourse principle (D), according to which only those norms can claim validity that could meet with the agreement of all those concerned in their capacity as participant in a practical discourse". attentive to the values inh

22

. So what, it might be asked, has all this got to do with private international law, which is, or purports to be, a set of instrumentaltools designed to answerhighly formalistic or doctrinal questions of jurisdictional scope? The answer is, certainly, that these changes are of considerable significance. Of course, the Christine Goodwin casediscussed above as emblematic of the epistemological shift which accompanies recognition -, is a domestic case. The example would take on a private international law dimensionif a transgendered person, on moving into the forum country, were to encounters difficultiesthrough differences in the way civil registers work -linked to the fact in line that her post-operative gender is notin line with her civil status. This was precisely what happened in acase judged by the Paris Court of Appeal of Paris in respect of an Argentinian transgendered woman 97 . In consideration of B v. France 98 , the court allowed a suit enjoining the French registrar to modify the French civil register (thereby affecting the administrative documents issued on that basis), even if this involved ignoring the (unchanged and unchangeable) birth certificate issued by the individual's country of origin. However, it matters little here that individual applicant who is "within the jurisdiction" of the forum State within the meaning of article 1 of the European Convention of Human Rights, is a foreigner to that country-in other words, whether or not the case is framed as one of private international law. The distinction between internal and international situations is of little import, since the methodology and the requirements of article 8 will always be the same in both cases.

23. This is not to say that private international law has not always been erent in personhood 99 ;however,a different suggested 100 . This is at lea epistemological frame is proposed by human rights law in this context,substitutinga concrete, individualized approach for themore abstract concernfor continuity and permanence of status whatever the circumstances.The values carried by the method are care, respect for alterity, protection of dignity and identity, which are to a large extent excluded by the abstraction of private international law methodology. The scope of recognition cannot be defined dogmatically, in the way in which traditional methodologial tools determine their purview. This is because recognition responds, rather, to needs stemming from the denial of identities in real life. However, these are salient in the field which, in the vocabulary of the conflict of laws, belong to « personal status », and involve the impact of crossborder mobility on personhood and family relationships. Does this mean that, in this field,the tools and methods of this disciplinearedisqualified?The question, now, is the extent to which recognition could be seen to represent the excavation of an alternative axiological project which has always been contained within the conflict of laws.

III. The space left for private international law ?

24. For private international law, in cases involving the issues of identity with which recognition grapples, the recognition project has two significant normative implications. This is because the turn to « standpoint » perspectives described above pays little heed to the very distinctions which are fundamental to private internatinal law. On the one hand, the methodology of recognitionfocuses oncontextualized needs, whether individual or social; on the other, it revisits assumptions aboutthe « nature of law » as an abstract system of norms. However, both concerns are in fact addressed by the alternative methodologydisparagingly named « unilaterism » in the heyday of the twentieth century's turn to « multilateralism » (to a large extent a misnomer itself)-which has always served as a comparator or faire-valoir, a backdrop, and as a source of inspiration for « escapes », exceptions or alternativeswhen the dominant methods yield unsatisfactory results. But despite the received historiography of the evolution of the discipline as swinging regularly from one method to another, the change which recognition seems to imply is, predicability, more complicated than a mere return to a form of neo-feudal statutism, as is sometimes st partly because of the advent of human rights, through which the recognition concept seems to be entering the law, come equipped with their own methodology.

25. Traditional tools, still largely in use today -although in various increasingly flexible forms 101 -are based on what is known as « multilateralist » methodology (in French « bilateralism »). Its attractive nameconveysthe liberal-universalist project of which private international law espoused the views at the end of the nineteenth century. The advent of recognitionraises two sets of challenges tothe traditional model. Firstly, since is still based very largely,on categories which are largely modeled on the forum's own legal institutions, it has a deliberate and as it were, built-in, bias expressing what is sometimes termed, in other disciplinary fields, "methodological nationalism" 102 . This is expressed through the variousstages of reasoning required by the conflict of laws, and most notably, the operation known as « characterization ». By contrast, recognition requires asking howthe Other apprehends, constitutes, refoundsand challenges the law 103 .Secondly, at least in the continental legal tradition, private international law presupposes a strongly « normativist » or Kelsenian conceptual framework 104 . Fact and law are sharply separated, while social practice is excluded form the definition of the latter, which remains positivist or state-centered.There is a causal link between such a conception of law as a systemand the « reduction to self » which underlies the liberal representation ofthe Other.

26. The capacity of such a methodologyto apprehend and acceptdifferences in legal institutions has been constantly challenged by the alternative project -which bears the less flattering label, « unilateralism »-whichit replaced. The turning point is generally considered to have taken place at the end of the nineteenth century, with the simultaneous discovery 105 theory » of private internati equivalence, assumed by von Savigny 106 , between statutist approaches (which start from the rule and determine its scope,in relation to its policy objectives) and the search for the « seat » of the legal relationship. This is because any coincidence between the two methodologies assumes that all the legal systems involved share a common understanding of the « nature » of such relationships (whether they are issues of contract, tort, personhood, etc)and what the factors are (visions, values or policies) which dictate where their « seat » is located. A turn from faith in universalism to the pre-eminence of local values encouraged by rising nationalism in Europe leading up to the first world war and equally salient in the period leading up to the second, induced, curiously, the decline of statutism, and the pre-eminence of the « multilateralist » version, which became, in doctrines such as that of Bartin, the reflection of domestic world-vision 107 . 27. However, although disqualified as a general method, the alternative project has constantly either been championed (unsuccessfully) or, more subtly, used in parcellar forms within the dominant methodology. For instance, whenever there is a conflicting view from elsewhere on the way in which a personal relationship should be structured or given effect, multilateralist tools tend to compress it into structures which are cognizable and acceptable to the forum. However, for every resulting mismatch, incoherence, or unfairness, there is an adjustment which usually borrows from « unilateralist » approaches.

Renvoi, characterization, or preliminary questions are all instances of this mix. Moreover, the transformations of « private law » in the second half of the twentieth century have also raised radical difficulties (« overriding mandatory rules ») which do not fit into then multilateralist scheme and have been dealt with -formally as derogations or exceptionsthrough statutist methods.

28. This state of affairshas been systemized by Didier Boden, who has shown how unilateral ideas have invisibly colonized the « general onal law, at the price of frequent conceptual 108 . Taking as a reference the most contemporary, and most sophisticated, modern version of unilateralist doctrine as elaborated by Quadri 109 , Boden reconnects the form and the substance, or the methods and the values, to show that the choice betwen these available tools is neither a matter of neutral technique or jurisdictional allocation, but one of axiology. Borrowing and subverting vocabulary from public international law, he opposes the methodologial « monism » under which multilateralism operates, to the respect of the other inherent in the « unilateralist » ideal.Thus depicted, the latter belongs to the pluralist school in law. It is ready -until the threshold of tolerance is crossed-, to accept diversity of shapes and sizes. It does not suppose that the other necessarily fits in the mould of self, but begins with an acceptance of things as they are, or as they have been shaped in their social context and through the expectations to which they give rise. Its values are tolerance ; its ethics reciprocity and communication ;its epistemology linked to standpoint and contextualization.

29. On all these points, this alternative methodologial projectclearly « fits » well with the concept of recognition. The requirements of recognition, however, go further than does unilateralism, to the extent that the latter has always been conceived, though through variable forms throughout its history 110 , as a conflict of laws methodology. In other words, it is designed to enable a court to choose between potentially overlapping or conflicting claims of different national legal systems. Despite the quite surprising degree of interest that even the most conservative of internationalists have professed for the nti Romano111 , the vision of the « laws » that 108 See D. Boden, L'ordre public, limite et condition de la tolérance. op cit. Among the consequences of this conceptual confusion are difficulties in distinguishing overriding mandatory rules from the exception of public policy, and various contradictory positions on renvoi, conflicts of characterization and preliminary questions. implicitly designated by a choice of law rule of the forum. In the this methodology is designed to coordinate has remained, until now, a liberal one, centered on State-made rules. Nothing of course would prevent enlarging this vision to the social practices which actually shape individual relationships. However,even then, the methodology has inherent structural limits to extent that it stops at the acceptance of relationships illegally constituted (that is, constituted contraryto locally applicable formal law), which are cases for which courts have had in the past to use various expedients such as the public policy exception, escape clauses, or substantive exceptions such as the unpredictiability defence or « la théorie de l'apparence »112 in order to give effect to an unfamiliar foreign relationship within the constraints of the offical methodology.As illustrated by the case put to the Court of Appeals of Paris in 1994, this difficulty is illustratedin an instance where a foreign citizenasks for the acceptance of hersocial gender or biological sexchange, where it is not recognized by her personal status113 . This is precisely where human rights step in. To a large extent they absorb all these methodological devices,of which the use has always served to express, variously, the fundamental values or the sense of fairness of the court in a particular case.

30. These links between unilateralism and an approach in terms of rights will not come as a surprise. There is asignificant precedentinthe « vested rights »doctrine, which-actually using the vocabulary of « recognition » -reflects thisconnection. The vested rights doctrine first grew up as a means to find a way to circumvent the(formal) sovereignty, or monism, of the forum in order to apply foreign law : the only way to do so was to focus on the right rather than the law under which it was created.The multilateralist critique was quick to come : the right could not exist independantly from its governing law, which was p reface Ph. Francescakis, (Dalloz, 1975).

reality than is often made recognition paradigm, this formal rationality goes by the board. As the Wagner case shows, an effective relationship must be recognized, unless there is a (proportionate) reason not to. However, this renewed methodology raises further issues,and even revives a few old ones.

31. Indeed, like all the progeny of pluralism114 , unilateralistmethodology in the conflict of laws has always been critized as not solving conflicts. American neo-statutism was discredited by reason of its inability to decide « true » conflicts, while its earlier European proponents were similarly disqualified by the objection that it left unsolved negative conflicts(where no national rule or legal system includes a given relationship in its scope) and their mirror image, positive conflicts or overlap 115 . Similar objectionsare levelled at methods based on « vested rights ». If two conflicting rights are claimed to have been acquired under two different legal systems, according to what criteria should either one prevail over the other? For instance,in a cross-border surrogacy situation, the surrogate might decide to keep the child, while the biological parent might claim it116 . The response of unilateralism is that themore effectiveright prevails -with all the uncertainties of assessing effectiveness in such a context.

32. The same case could, however, be framed in terms of human rights law, and once again give rise to a conflict, not between different national legal systems each claiming to provide, or claimed to be providing, an answer, but between different codified rights. The surrogate and the biological parent might then each invoke a different right (article 8, right to a family life, versus article 2, right to life) -or, less improbably, two conflicting expressions of the same right (article 8 : each parent claims the child under the same right to a normal fmaily life). Although the instances of conflicting fundamental rights are perhaps less frequent in out, the response of human rights lawliesin the balancingprocess. An inaccurate account of the latter tends to portray all instances of balancing as conflicts of rights, whereas the balancing process primarily addresses the necessity for a fundamental right to override national legislation. Balancing, therefore, is part of the ordinary process of implementation of human rights. However, in the case of conflicting rights, the same reasoning remains relevant. In a domestic context, this is apparent in a case such as von Hannover v. Germany, where privacy encounters the freedom of the press 117 . Adding a cross-border dimension (but outside the law of persons), the ECJ's Viking/Laval case-law 118 shows the conflict between the right to take industrial action and the economic right (or freedom) to provide crossborder services or establishment 119 . The ECJ deals with the conflict in the familiar terms of balancing under the proportionality test 120 , without addressing the underlying conflict of laws issue 121 . The methodology is framed in terms similar to the idea of « comparative impairment »familiar within the American functionalist approach 122 .

33. The existence of a conflict of laws may provide heightened risk of a conflict of fundamental rights, to the extent that the content of each of the conflicting laws might be reframed in terms of different and 119 For the needs of the demonstration, it is no matter here the two conflicting rights (the right to take industrial action and freedom of establishment) do not derive from a homogeneous source. 120 Thus, for example, in the Viking case, the restriction to the freedom of establishment constituted by the industrial action "may, in principle, be justified by an overriding reason of public interest, such as the protection of workers, provided that it is established that the restriction is suitable for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to achieve that objective" 121 In terms of the conflict of laws, in the Laval case, Letton law, the law of the country of origin of the employer and less protective of the worker, remains applicable to the employment relationship for the duration of the cross-border provision of services. In the Viking case, Estonian law governing the new establishment, less protective of the worker, becomes applicable to the individual employment relationship (see our analysis in Revue critique de droit international privé 2008. 356). 122 W. Baxter, « Choice of law and the federal system », 16 Stanford Law Review 1 (1963). bright-line or flexible, with contradictory rights 123 (or divergent expressions of one right). In such a case, to a large extent, the method of the conflict of laws is inevitably absorbed by the balancing process. A simple example is provided by the publication by a newspaper established in a country which protects freedom of expression of unauthorised pictures of a celebrity who invokes the stricter privacy rules of her place of residence 124 . In such a case, the conflict of laws wouldbe absorbed,inevitably,by the conflict of rights, so that the applicable law provides no more than the starting point for the balancing process -which remains identical whether or not there is a cross-border element 125 . In either case, as von Hannover mandates, the court will « carefully balance(d) the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life » 126 .Whatever the applicable rules, the only real arbiter of outcomes is the duty of the court to carry out a proportionality test in context. Given the conflict of values involved, the choice of conflict rule -national or European, general principle or special rule, foreseeability clause or public policy 127 -is 123 This was the case in Viking /Laval even if the ECJ does not frame the conflict in these terms (see above FN 120). 124 Or the reverse ! See the 2012 (Kate Middleton) Windsor v. Closer pictures case and the debate to which it gave rise on conflictoflaws.net (online symposium organised by Gilles Cuniberti under the title « Cachez ce sein »).Here, French law of the place of the tortious conduct is certainly less protective of the freedom of the press than the law of the claimant's domicile. 125 The idea here is that once a fundamental right is invoked, the fact that it is so on the basis of a foreign law does not make the problematic specific. Therefore, the conflict would arise the same terms in Charles Taylor's multicultural society, where the life experience would perhaps be on the infra-legal social norms in a given community. 126 In the case of unauthorized pictures of Caroline of Hannover (see von Hannover v. Germany cited above FN 117), which had given rise to judicial division within Germany over the respective weight to be given to freedom of press and privacy of the royal couple. In 2004, the ECtHR observed :« §124. … the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken… §126. In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision". Outside the German domestic context, whatever the legal basis supporting the competing interests here, it would be difficult to imagine a very different outcome. 127 The public policy exception itself would have to mirror the balance of fundamental rights to which the European States are ultimately held under the ECHR (or, within the EU, if Regulation « Rome II » is extended to cover such issues, under the Charter).

similarly into the balancing process 129 .It is somewhat as if balancing for a significant part, indifferent in the end. The forum will be bound ultimately to a proportionality test, whatever the starting point. Human rights law indubitably places constraints on adjudication, but it is of course largely context-sensitive and does not mandate one right answer. The economy of any choice of law rule, along with its exceptions, special refinements or escape clauses, is likely to reflect similar constraints -no more, no less.

34. At this point, then, there seem to be two remaining functions for the conflict of laws to fulfill. The first, once the right or the situation is recognized, is to spell out its legal regime. If the parent-child link (inthe case of Wagner) must be recognized -the question reamins as to the legal effects which best ensure the adaptation of the child's status to its environment. It is probable that recognition does not dictate method once the need to which it responds is satisfied, and it is up to the courts to determine,in context, where that need stops. Here, the delicate adjustments which are part of the toolkit of private international can help. The Harroudjcase provides an apposite example 128 . The second point takes us back to the proportionality test itself. A fundamental right may be invoked in a context in which it isopposed to the application of a foreign law of a non-Convention state, very much in the same terms as the exception of public policy, which it largely absorbs. And just as public policy now clearly varies its demands according to the density of the links between the forum and thepersonal and factual circumstances of the case, it may well be that these elements weigh 128 Cited above, FN 43. The Court notes that through the conflict-of-laws rule, by providing for an exception for children born and residing in France, and giving children taken into care in France by a French national rapid access to French nationality, the authorities had made an effort to encourage the integration of such children without immediately severing the ties with the laws of their country of origin, thereby respecting cultural pluralism. A fair balance had therefore been struck between the public interest and that of the applicant, without interfering with her right to respect for her private and family life. 129 And it is probably time for private international law to revisit the way in which it understands such links. On the idea of « milieu de vie, see M. Hunter-Héinin, supra FN 70. For a further proposal, concerning the economic sphere, see H. Muir Watt, « Private International Law Beyond the Schism", op cit,p. 420, proposing to these revisit links in order to ensure the double correlation of affectedness and voice, on the ne hand, and responsibility and sphere of influence, on the other. o 35 must absorb the tools and devices of private international law,while the axiological direction of this discipline is reciprocally determined by recogntion.

Conclusion

35. Recognition through human rights in private international law may, therefore, be doing two things. The first is drawing attention to the links between the methods,which has always occupied a highly significant part of this field,and the values they carry with them. The absorption of the conflicts of laws relating to personal status by human rights, has not only had a radical effect on the existing legal tools, but has also servedto highlight the convergence between the axiological project of recognition and the pre-modern statutist ideal. The second is suggesting that the schism between public and private international law may be in the (incremental) process of being bridged. In this latter perspective, it is remarkable that recognition is now associated with a refoundation of international law on both sides of the looking glass.

  1522, AJ famille 2011. 262, obs. F. Chénedé; AJCT 2011. 301, obs. C. Siffrein lanc.

s 95 1989 .

 1989 Sources of the Self: The Making of Modern Identity. Harvard University Press 96 Paul RICOEUR, The Course of Recognition,op cit.

  and fundamental (including constitutional) rights would be charactterized in the American contextessentially as federalism issues, which are dealt with as such under the Federal Constitution ; the debate in French and German is largely dogmatic, focussing on issues of whichthe relevance is conditioned upon methodologial assumptions which have long been rejected across the Atlantic. One notable exception in the literature is Ralf Michaels, « EU Law as Private International Law? Re-Conceptualising the Country-Of-Origin Principle as Vested Rights Theory » (ZERP /scholarship.law.duke.edu/faculty_scholarship/1573), but the thesis according to which « mutual recognition » under European Union has anything to do with « vested rights », is not really convincing ; at at least,no more so than any attempt to correlate mutual recognition and the recognition debate considered above. Comp. also, H. Muir Watt,« European federalism and the new unilateralism", 82 Tulane Law Review 1983 (2008).

	Diskussionspapier	5/2006	(2006),	available	at:
	http:/

  22 December 2010, C-491/10 PPU, Revue critique de droit international privé 2012 p. 172, note H. Muir Watt, D. 2011. 248; ibid. 1374, obs. F. Jault-Seseke ; RTD eur. 2011. 482, obs. M. Douchy-Oudot; Cour européenne des droits de lʹhomme (2

e Sect.). -(n° 14737/09). 12 juillet 011, D. 2012. 1228, obs. H. Gaudemet-Tallon et F. Jault-Sesek; AJ fam. 2011. 504; ibid. 012. 97, Pratique A. Boiché. 2 2

46

The political argument, familiar to federalism debate (Rosen), is that giving effect to relationships between foreigners which would not be allowed domestically (same-sex marriages, sex-changes, and now surrogacy arrangements in Mennesson : see the text below) will erode domestic barriers.

47

Wagner v Luxemburg, cited above FN 34. Under the case-law of the European Court of Human Rights, article 8 in particular has been read as being of particular import in cases with crossborder implications. But it is not the content of regime itself which comes under scrutiny (the way in which Luxembourg regulates adoption, or in which elgium regulates family names), but the way in which effects of national rules play ut in international situations, interfering with an otherwise effective relationship. B o 48 ECtHR Mennesson, forthcoming 2013. See for the last stage of the saga before the French courts, Civ. 1 re , 6 avr. 2011, n° 10-19.053, Revue critique de droit international privé 2011 p. 722, note Petra Hammje,

  and which is particularly visible in the ethics of care77 . Thus, Christine Goodwin's claim is assessed by the Court through herspecific experience, and is emancipatory function-, bolstered the fiction of abstract equality as between unequally endowed nations. It has also prevented indigeneous peoples from acceding to any form of voice in matters affecting their culture, identity or economy. The advent of recogntion through cultural rights has shaken the axes of liberal doctrine of international law by advocating the representation plural interests (see E. Jouannet, op cit, p.169 et s.). In turn, this move has repercussions in private international law, which is similarly challenged by norms whose scope and origin are not aligned on the State.

See R. Michaels, K. Karen Knopp, A. Riles, « Transdisciplinary Conflicts of Law », 71 Law & Contemporary Problems 1 (Summer 2008) (Symposium issue), and in particularKaren Knopp, Citizenship, Public and Private, p. 309. 76 On standpoint theories in the sociology of knowledge, see L. Gassot, « Karl Mannheim et le genre : point de vue et connaissance située », in D. Chabaud-Rychter, V. Descoutures, A.M. Devreux, E. Varikas (eds), Sous les sciences sociales, le genre, 448, p. 453. 77 Gilligan, C. In A Different Voice. Cambridge, Mass.: Harvard University Press, 1982 ; « The Ethic of Care for the Self as a Practice of Freedom » : An Interview with Michel Foucault on January 20, 1984 in The Final Foucault : Studies on Michel Foucaultʹs Last Works. Philosophy & social criticism 1987, vol. 12, n o 2-3, pp. 112-131. See Internet Encyclopedia of Philosophy" V° Care Ethics:

  Habermas on Law and Democracy: Critical Exchanges (Philosophy, Social Theory, and the Rule of Law), p.13, and the various critical exchanges in this volume.

	80 Estelle Ferrasese, « Jürgen Habermas et le genre. L'expérience du décentrement par
	l	a discussion », in D. Chabaud-Rychter, V. Descoutures, A.M. Devreux, E. Varikas
	eds), Sous les sciences sociales, le genre, 418, p. 425. (

7 b 8 Nancy Fraser and Linda Nicholson, `Social Criticism without Philosophy: An Encounter etween Feminism and Postmodernismʹ, Theory, Culture & Society 5(2-3): 373-394 (1988). 79 See J Habermas, « Paradigms of Law », in M. Rosenfeld & A. Arato,

  . As Foucault remarked in La Volonté de savoir: "La vie, comme object politique, a en quelque sorte été prise au mot et retournée contre le système qui entreprenait de la contrôler. C'est la vie, beaucoup plus que le droit, qui est devenue l'enjeu de luttes politiques, meme si celles-ci se formulent à travers des affirmations de droit. Le "droit" à la vie, au Democratic Legitimacy, op cit, identifying the components of such legitimacy as : Impartiality, Reflexivity, Proximity. 86 M. Foucault, La Volonté de savoir Gallimard 1976 , p.161 (in English The Will to Knowledge, trans. byRobert Hurley,Allen Lane,1978).

	texture of the common law, both arguably belong nevertheless to	the	same paradigm
	of law as abstract (even if inductively produced) legal knowledge	.
	83 On laws's (hidden) gender, see Graycar and Morgan, op citFN	74.
	84 V. Th. W. Adorno, Minima Moralia (1951), Payot, Paris, 1980; J.F. Lyotard,
	Introduction:The Postmodern Condition: A Report on Knowledge," 1979(xxiv-xxv); leaving
	behind (masculine) "metanarratives", binaries, and unilateral or closed principles or
	enunications.

corps, à la santé, au bonheur, à la satisfaction des besoins, le droit par delà à toutes les oppressions et 'aliénations', à retrouver ce qu'on est et tout ce qu'on peut être, ce droit, si incomprehensible pour tout système juridique classique, a été la réplique politique à toutes ces procedures nouvelles de pouvoir qui, elles non plus, ne relevaient pas du droit traditionnel de la souveraineté" 86 . 20. iii) The third change isalso identifiable as a rejection of what has been described, in relation to the methods of the social sciences, as "methodological nationalism" 87 .Although perceived, or at least 85 Pierre Rosanvallon,

  in Germany and France of the lack of101 This trend towards the gradual abandon by the law of a degree of formality within the numerous codifictions are taking today, see S. Symeonides, S. Symeonides, Private International Law Codifications: The Last Fifty Years___ (forthcoming 2013). On this point, see D. Bureau and H. Muir Watt, Droit international privé, op cit, §24,326.105 Or supposedly so. According to Didier Boden (L'ordre public, limite et condition de la tolérance. Recherches sur le pluralisme juridique, Paris I, 2002), it is quite possible that Bartin had read Kahn's work (which Bartin does not cite, however).

	102 See above FN 87
	103 Ivana sailovic, op cit. I
	104

On the current debate in political philosophy, and its Hegelian legacy, an excellent overview can be found in « Social and Political Recognition » in Internet Dictionary of Philosophy. The recognition concept in Hegelʹs early social philosophical works(on 'struggle for recognition' : kampf um anerkennung) is re-read by Axelle Honneth in The Struggle for Recognition: Moral Grammar of Social Conflicts (Polity Press 1996). Similarly, Charles Taylor's Hegelian scholarship inspires his own work on recognition within a multicultural society (Hegel and Modern Society, 1979; Multiculturalism. Examining the Politics of Recognition, Princeton University Press, 1994).

Honneth's theory of recognition draws explicitly upon converging trends in communication ethics (Habermas), social psychology (George Herbert Mead) and

On the difference between discourse (in the form of publicly stated reasons) and process (as an analytical consruct), see Jacco Bomhoff, Two Discourses of Balancing, 2012, p.17, §1.4.

On the historical reasons for which, in France, the development within the social sciences of a "corporatism of the universal" (term borrowed from Bourdieu: Les Règles de l'Art. Genèse et Structure du Champ Littéraire. Post scriptum: "Pour un corporatisme de universel", Paris, Seuil, 1992) induced a specific turn in theories of law and state at the end of the nineteenth century, in a very different mode from contemporaneous developments in the United States, see Pierre Rosnavallon, La légitimité démocratique, p.67 et s. See the example of the reception of Rawls in France (in the account under this title, by Catherine Audard, European Journal of Political Theory October 2002 vol. 1 no. 2 215-227) who notes that this has been "an extremely complex story where forces of innovation have been, in the end, overwhelmed by the resistance of `philosophical nationalismʹ".

On the same paradox in respect of structuralism and post-structuralism, which have not been used by French lawyers, see Duncan Kennedy, « A Semiotics of Legal Argument. European Introduction », p. 324 , quipping, in response to critique, that the « merely conservative » may be a masquerade for the « underdeveloped ».

See again, Ph. Jestaz and C. . Jamin, « La Doctrine », op cit. (cited above, FN 10)

P. Ricoeur, The Course of Recognition, op cit; A. Caillé, La quête de la reconnaissance, nouveau phenomène social total, La Découverte, coll. « textes à l'appui », Paris, 2007;P. Rosanvallon, La légitimité démocratique, op cit.

See A. Garapon, "Justice et reconnaissance", Esprit, March/April 2006. How paradoxical, too is the fact that an unexpected source of concern for recognition in contemporary French (non-legal) theory may be the non-human, having somehow bypassed humanity itself ! (see Bruno Latour, Politics of Nature: How to Bring the Sciences Into Democracy (2004, Harvard Univ. Press, translation Catherine Porter) focussing on the role of the spokesperson who must speak for otherwise mute things in order to ensure that the collective involves both humans and non-humans).

See notably, P. Lagarde, "Développements futurs du droit international privé dans une Europe en voie dʹunification: quelques conjectures", RabelsZ 2004. p. 225; P. Mayer, "La méthode de la reconnaissance en droit international privé", inLe droit international privé : esprit et méthodes : Mélanges en lʹhonneur de Paul Lagarde, Dalloz-Sirey 2005, p. 547 ; P. Lagarde, "La reconnaissance mode d'emploi", Mélanges en l'honneur d'Hélène Gaudemet-Tallon, éd. Dalloz 2008, p. 481; C. Pamboukis, "La reconnaissancemétamorphose de la méthode de reconnaissance", Revue critique de droit international privé 2008, 513.

 25 The scope of recognition cannot be defined dogmatically, in the way in which traditional methodologial tools determine their purview, for the epistemological reasons that will be explained later. Recognition responds, rather, to a need stemming from the denial of identity, which will tend to circumscribe its use to personhood and family relationships (see Gianpaolo Romano, « La bilatéralité éclipsée par l'autorité », Revue critiquede droit international privé 2006.457). It is clear however that a tort or criminal law case may involve issues of recogntion, as for instance in dsiputes brought under the American federalAlien Tort Statute (on the interaction between criminal law and recognition see too below FN

73).26 Drawing attention to the renewal of method in the field of croos-border personal relationships, Gianpaolo Romano, « La bilatéralité éclipsée par l'autorité », op cit, FN 25.

Of this is also partly true of public international law (recognition of states). On the various meanings and uses of recognition in the private international law context, see D. Bureau & H. Muir Watt, Droit international privé, Thémis, PUF, 2 ème éd., §238 s.

This recurring phrase was coined (within this specific context) by Ph. Francescakis, preface to the French translation of Santi Romano's Ordinamento giuridico (L'ordre juridique, P François and P Gothot (eds), French translation, Dalloz, 1975).

See however, spelling out the « recognitive function » of private international law in the field of personal status: Daniel Gutmann, Le sentiment dʹidentité : étude de droit des personnes et de la famille, Preface by François Terré, LGDJParis, 2000. 192

Duncan Kennedy's analysis of the relationship between form and substance, and the politics of their separation within the « jurisprudence of rules » (see « Form and substance in private law adjudication », 89 Harv. L. Rev. 1685) holds all the more true in this field, that forms represent a large part of the content of the discipline, which (in the European tradition) is predominantly methodological.

See the various contributions cited above FN 24.

The principal point of entry of European Union law into the private international law of personal status is through the concept of European citizenship (see ECJ 2 nd March 2010, Grunkin Paul C-353/06). In the discussion that follows, I focus on the fundamental or human rights codified in the Euroepan Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter, the European Convention on

See the current reactions in France to the proposal of « marriage for all » based on the perception of gay marriage as a Trojan horse for various forms of medically assisted procreation (including surrogacy conventions for male same-sex couples) in domestic law. The Mennesson case realtes to crossborder recognition, whatever the postion of domestic law on this point.

The arrival on the scene of a new method associated with human rights has generated considerable resistance: see for example, Lena Gannagé, La hiérarchie des normes et les méthodes du Droit International Privé,Tome 353, 2001, Preface by Y Lequette.

The difficulty of trying to capture the change is in part due to the fact that the vocabulary of « recognition » has long been part of private international law. Far from the identity concerns that the concept involves today, recognition was first associated with the effects of foreign laws and judgments within the forum despite the formal exclusiveness of the sovereignty of the forum (how can a court apply foreign law?). Another meaning relates to the ways in which an unfamiliar legal institution (such as a trust) can be "fitted" among the institutions of the forum? In the private international law context, this is not a question for the legislature (should a civil system recognize trusts ?) but whether court can articulate -make any sense out of -an unfamiliar legal object which is claimed must be articulated its own institutions (can a notaire dea in any significant way with a trust ?). l

On this analogy, which has formed round the concept of « milieu de vie », see Myriam Hunter-Hénin, Revue critique de droit international privé 2006 p. 743 « Droit des personnes et droits de lʹhomme : combinaison ou confrontation ? ».

See, on the recognition paradigm, Ivana Isailovic, Global Governance and Sites of Recognition: Identity, Private International Law and Patterns of Marginaliztion PhD Sciences-po, Paris 2013 (forthcoming). This work focuses in the (foucauldian) sites of misrecognition created by the tools of private international law.

The applicant, Christine Goodwin, a United Kingdom national born in 1937, was a post-operative male to female transsexual. The applicant claimed that she had problems and faced sexual harassment at work during and following her gender reassignment.

It is interesting to reflect upon the different work that human rights and criminal law (for instance, on hate speech) can do. Here, recognition is symbolic and nonrepressive. Of course, the defendant here is a State and not a private person; when private conduct affects recognition, it will often work through criminal law rather than through the horizontal effect of human rights.

 74 On the question whether the law is gendered (as masculine), see Regina Graycar and Jenny MorganThe Hidden Gender of LawThe Federation Press, 2 nd

edition.75 Recognition has brought similar awareness of the "politics of method" described in the text into public international law, where it has been a powerful factor of decline of the way in which the foundational concept of state sovereignty has -far from its initial

G. Samuel, Epistemology and Method in Law, Ashgate, p.95 et s.. While the civilian conception of law as a "formal set of axioms" can be opposed to the more seamless

A. Supiot, "L'esprit de Philadelphie. La justice sociale face au marché total", Paris, euil, 2010, p. 103. S

Santi Romano, L'ordre juridique, P François and P Gothot (eds), French translation,

This could be likened to a form of promissory estoppel. On this theory in the conflict of laws see M.N. Jobard-Bachellier, Lʹapparence en droit international privé. Essai sur le rôle des représentations individuelles en droit international privé, LGDJ, Vol. 178.

Thus, the Court of Appeals of Paris, 14 juin 1994, cited above, enjoins the registrar (or rather, declares admissible the applicant's action to the registrar) to modify the French civil registers to take account of the sex change, despite the fact that such a change was not conform to the applicant's Argentinian personal status, because not to do would be in itself a violation of a fundamental right :"L'application de la loi nationale de l'appelant, qui paraît ignorer le syndrome du transsexualisme, conduirait à une décision constituant, en ellemême, la violation d'un droit de l'homme protégé tant par la convention que par le droit positif interne dans son état le plus récent ".

For a scathing critique of pluralism in the field of public international law, see M. oskenniemi, The Politics of International Law (Hart Publishing, 2011) 359. K

On this critique, and the subsequent « lack of positivity » of statutist methodology, see Pierre Gothot, « Le renouveau de la méthode unilatéraliste en droit international privé», Revue critique de droit international privé 1971.1, p.1.

In functionalist terms, this would most probably be an "unprovided-for case" of the type identified (in a very different type of dispute) in Neuemeier v Kuehner, 43 A.D.2d 109, 349 N.Y.S.2d 866 Dec. 6, 1973.), in which the surrogate's claim would be based on the personal law of the biological parent, while the latter's claims would invoke the surrogate's more liberal personal status.