Thus, Story has taken away from Huber the idea - the one idea on the subject that was particularly his - that a state is under an obligation to follow the law of another state where the act or transaction in question occurred, and he has replaced it with the notion that each state should be the judge for itself in deciding when and to what extent foreign law should be recognized, but should so recognize such foreign law from a sense of mutual interest and utility and should do it justice in order that justice be done in return. The first passage quoted from Story shows that, when he says “this matter is to be determined, not simply by the civil laws, but by the convenience and tacit consent of different people,” he had misunderstood Huber on the nature of the obligation of comity. For Story, the obligation is not imposed by law (“by the civil laws,” as he puts it); for Huber, the obligation is a legal obligation deriving from Roman law, not indeed the Roman ius civile, particular to the Romans, but the ius gentium, binding on all people. This - Story’s - notion of comity is lacking in precision. Indeed, a modern scholar of the subject, Paul Finkelman, writes of “the unenforceable and unpredictable legal theories of the international law of comity.”187 But Story was not the first to misstate Huber in the United States. Certainly in England and in common law U.S. the cases show that VI 186 Conflict pp. 35f. 187 Imperfect Union, p. 21. consulted, and not that of one only. Now, this demonstrates, that the doctrine owes its origin and authority to the voluntary adoption and consent of nations. It is, therefore, in the strictest sense a matter of the comity of nations, and not of absolute paramount obligation, superseding all discretion on the subject.186
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