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Conflict of Laws - History and Theories
Conflict of Laws - History and Theories
Historical Antecedents
The Roman Empire
Italy, except Rome, consisted of a large number of towns, called municipia, while the rest was divided into separate provinces
Origo and domicil:
a.
b.
Every inhabitant was necessarily connected either with Rome or with on of these urban communities
The bond of connexion was either citizenship or domicil. Citizenship originated from origo, adoption, manumission (liberation of a slave) or election Therefore, a person could be a citizen is several urban communities at the same time
c.
A person had his origo in the place to which his father belonged; if it was an illegitimate child, it was the place his mother belonged to.
Domicil meant the relation between a person and that urban community which she had chosen for her permanent abode and therefore the centre of her legal relations and business
So a person could be born one place, adopted in another and domiciled elsewhere. This raises a question of choice of law and though probably governed by a system of personal law, the question was which system of personal law? The law of origo or domicil? Savigny submits that in case of conflict between laws of citizenship and domicil, then law of citizenship prevails. If one is a citizen of more than one place, then law of the place of birth applies.
Some isolated rules of choice of law can be discovered from this period. For instance, contracts had been determined according to the law of the place where it was made and property transactions were governed by lex situs
South of the Alps, this concept of territoriality arose as a result of the growth of Italian cities and the bond of union among the people was neither race nor subjection to a common overlord but residence in the same city. A number of cities such as Florence Bologna, Milan, Pisa and Padua emerged and their diversity of municipal laws, combined with commerce between cities, required some respect to alien laws, ultimately giving rise to the science of private international law.
Post-glossators, jurists attached to the law schools of Bologna, Padua, Perugia and Pavia, made the first serious attempt to a apply a scientific mode of reasoning to reconciliation of conflicting laws.
The first law of the Corpus Juris, they connected their disquisitions to was the law De summa Trinitae at fide Catholica, by which the Emperors Gratian, Valentinian and Theodosius sought to compel Roman citizens to observe Christian faith According to Wolff, though Italian jurists broke new ground, they pretended that they only developed rules latent in the Corpus Juris. Bartolus (1314-57), described as the father of private international law, was the first person to deal with the subject on principle and his method was to determine the province of each rule of law. He asked- What groups of relationships fall under a given rule of law?
The statute theory was originated by the post glossators which became the centre of interest for many succeeding centuries The word statute in the Middle Ages, was used to describe any local law, legislative or customary, peculiar to an Italian city and contrary to the general Italian law, i.e. the Roman law and Lombardic law.
Originally, the object of the statute theory was to settle conflicts which arose, first, between the local laws of the numerous Italian cities, and secondly, between the local laws and what may be called the common law, i.e. the legislation affecting all the subjects of the Emperor of Germany and King of Lombardy
They classified each law in accordance with how it concerned a person or a thing and evolved the following:
1. 2. All statutes are either real or personal or mixed. A real statute is one that regulates things, a personal statute chiefly concerns persons and a mixed statute concerns acts, such as formation of contract, rather than a person or a thing. Three categories differ in their field of application. Real statutes are essentially territorial, restricted to the territory of the enacting sovereign. Personal statutes apply to persons domiciled within the territorial jurisdiction of the enacting sovereign but they remain applicable even with the jurisdiction of another territorial sovereign. Mixed statutes apply to all acts done in the country of the enacting sovereign, even though they raise litigation in another country.
Though seemingly simple, determining what statutes are real, personal or mixed met with utmost confusion. The problem was insolvable. For example, a law which regulates ones capacity to transfer land was personal because it concerned persons or real because it affects land?
Some jurists dealing with capacity distinguished between favourable and onerous statutes. Incapacity of infancy was deemed favourable and so it followed a person affected wherever he went; but an onerous law ceased to apply outside the territory of the legislator. Bartolus made the distinction of personal and real laws based on the grammatical construction of the enactment.
In the 16th century, statute theory was carried to France. Different provinces of the same country, had different legal systems called coutume or custom.
French jurists elaborated the statute theory and Dumoulin, described as a legal genius by Westlake, was the first exponent of the doctrine that the law to govern a contract is the law intended by the parties. DArgentre however supported autonomy of the provinces, not of the parties. In the 17th century, Dutch jurists developed the statute theory further with the fundamental principle of the exclusive sovereignty of the state.
Theory of Savigny
Friedrich Carl von Savigny was a German legal scholar and historian who founded the historical school of jurisprudence. His approach was detailed in his eight volume magnum opus entitled System des heutigen rmischen Rechts, or System of Modern Roman Law, published in 1849, in which he maintained that it was possible to construct a system of private international law common to all civilized
nations
Through this approach, laws would be interpreted and analyzed according to a more scientific investigation, through research into the historical origins and development of particular laws in relation to local custom. Each legal relation has its natural seat in a particular local law and that should be applied when it differs from the law of the forum. This approach diverged from other approaches to the
development of legal rules based on natural law or statutist efforts to codify rules based on abstract or
unworkable principles The criticism of this theory is that it assumes uniformity of legal relations in all systems of law. For instance, a breach of a promise to marry is a contractual breach in some systems, a tort in others and no wrong in some others. Also, this theory is criticised as a goal easier longed for, than found. However, the basis of Anglo- Saxon law being experience not logic, Cheshire comments that that the actual practice of English courts corresponds in general with Savignys theory.
Modern Theories
Theory of Acquired Rights Theory of International Comity Local Law Theory The American Revolution
According to it, the judge cannot directly recognise or sanction foreign laws nor can he directly enforce foreign judgments. It has to be recognised by its own territorial law.
The territorial law must govern all cases. It was derived from Hubers statement. It was said that, the laws of another state which have been applied within its frontiers maintain their force everywhere. As a result of this, when the vested right obtained in one country have to be enforced and protected in other countries. And also it was supported by Sir William Scott in the case of Darlrymple v Darlymple. Extra territorial effect is thus given, not to the foreign law itself, but to the rights acquired or created under it
It explains why a sovereign state will wish to respect the sovereignty of another this respect extends to the sovereignty of the law and territorial sovereignty of another state. If comity is understood merely as a gesture of courtesy based solely on the discretion of a local government or a local court, it only explains the conflicts rules from a moral perspective (i.e., a morally binding covenant between countries. International comity is better understood as being based on reciprocity and mutual convenience in order to avoid or to reduce mutual inconvenience, countries have to give reciprocal comity to each other when considering the authority of foreign law in certain circumstances. This proposition may perhaps be called economic interdependence theory.
Since the comity theory is based on the courteous conduct of states or courts of different states, it is vulnerable to attack from the parochial, arbitrary and discourteous conduct of foreign states or foreign courts in certain circumstances. The comity theory does not impose a unilateral obligation upon a local court to treat a competing foreign jurisdiction as equivalent to its own jurisdiction.
To protect a right is to give effect to the legal system it originates from, for a right is not a self-evident fact but a conclusion of law.
This theory was advanced to explain the difficulty of reconciling the recognition of a foreign law with the general principle that the laws of a sovereign state have force only within its own territorial jurisdiction. Criticism: 1. Assumes a narrow meaning of territorial law, which is not only a set of positive rules regulating acts but also includes rules for choice of law
For instance, if an English court is testing the substantial validity of a contract made by two foreigners in Paris referring to French law, it is in fact applying a rule imposed by the English sovereign, as English choice of law rules are part of England and it can be described as putting into force part of the territorial law of England
2. The theory is futile if its supposed objective is to indicate the legal system which governs each legal relation, as it creates a vicious circle. 3. This theory is untrue in fact, as choice of law rules in much of the common law world require enforcement of an unrecognised or even repudiated right, by the chosen law 4. Savigny had criticised this theory of Huber, when he said, This principle leads into a complete circle; for we can only know what are vested rights, if we know beforehand by what local law we are to decide as to their complete acquisition.
The real significance of this theory is seen in the extended construction of this statement. For example, North and Fawcett argue that the gist of the local law theory is the proposition that a local court applies its own rules to the total exclusion of all foreign rules and it often for reasons of social expedience and practical convenience, takes into account the laws of the foreign country in question to apply the local law in a manner as close as possible to the way in which the relevant foreign law would apply
This is the spirit of the English choice of law rules and is undertaken to develop clear rules properly applicable to the generality of cases in a particular field.
Private International law, like any other law, is not an exact science and is not scientifically founded on the reasoning of jurists, but it is beaten out on the anvil of experience.
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